TAXATION 


IN 


MASSACHUSETTS 


A  TREATISE  ON  THE   ASSESSMENT   AND   COLLECTION  OF 

TAXES  EXCISES  AND  SPECIAL  ASSESSMENTS  UNDER  THE 

LAWS  OF  THE  COMMONWEALTH  OF  MASSACHUSETTS 


BY 

PHILIP  NICHOLS 

■I 

FORMERLY  ASSISTANT  CORPORATION  COUNSEL  OF  THE  CITY  OF   BOSTON 

AUTHOR  OF   "THE   LAW  OF  LAND   DAMAGES    IN   MASSACHUSETTS" 
AND   "THE   POWER  OF  EMINENT  DOMAIN" 


SECOND  EDITION 
1922 


W$t  financial  J&ublfc&mg  Company 

CONTROLLING  THE  PUBLICATIONS  OF 
MONTGOMERY  ROLLINS 

17  JOY  STREET,    BOSTON,  MASS. 


HS33 t 3 


AV 


Copyright,  1922 
By  Philip  Nichols 


•<"-•. 


•        •    •    - ,      *  ■ .  •  .  .' 
.....     ......     - 


INTRODUCTION 

Since  the  publication  of  the  first  edition  of  this  work  in  1913, 
there  have  been  each  year  many  amendments  of  the  statutes  re- 
lating to  taxation  and  decisions  of  the  courts  of  this  common- 
wealth interpreting  them,  and  also,  decisions  of  the  highest 
courts  of  the  commonwealth  and  of  the  United  States  defining 
the  limits  of  the  constitutional  power  of  the  legislature  with  re- 
spect to  taxation.  The  author  has  attempted,  with  more  or  less 
success,  to  keep  the  original  edition  of  the  book  abreast  of  these 
amendments  and  decisions  by  a  series  of  supplements;  but  there 
have  occurred  during  this  period  a  number  of  radical  changes 
in  the  system  of  taxation  which  it  has  proved  difficult  to  treat 
in  a  satisfactory  way  by  means  of  a  supplement.  Among 
these  were  the  provisions  for  the  foreclosure  of  tax  titles,  adopted 
in  1915,  the  income  tax  law  of  1916,  the  general  betterment  act 
of  1918  and  the  new  system  of  taxing  business  corporations, 
both  foreign  and  domestic,  adopted  in  1919.  Finally,  the  enact- 
ment of  the  new  codification  of  the  General  Laws  in  1921,  with 
its  new  chapter  and  section  numbers  has  rendered  obsolete  and 
useless  a  textbook  based  upon  the  chapters  and  sections  of  the 
Revised  Laws,  and  it  has  become  necessary  either  to  prepare 
an  entirely  new  edition  of  Taxation  in  Massachusetts  or  to  allow 
the  results  of  the  time  and  labor  expended  upon  the  first  edition 
to  lapse  into  a  condition  of  unavailability  for  further  usefulness. 
As  there  is  no  other  work  in  existence  covering  the  same  subject, 
the  latter  alternative?  should,  it  is  believed,  be  avoided  if  possible. 

The  author  has  therefore,  somewhat  reluctantly,  under- 
taken the  preparation  of  a  second  edition.  In  the  effort  to  intro- 
duce the  much  new  and  important  material  that  has  come  into 
existence,  or  been  brought  to  the  author's  knowledge,  since  1913, 
without  unduly  increasing  the  size  of  the  book,  it  has  been 
necessary  to  save  space  in  many  ways.  The  differentiation  be- 
tween the  statutes  and  the  text  has  been  accomplished  by  print- 
ing the  statutes  in  smaller  type  instead  of  indenting  them,  as  in 
the  first  edition,  and  much  has  been  saved  in  this  manner.    The 

'48U174  0 


iv  Introduction 

codification  of  the  statutes  has  also  in  itself  effected  some  re- 
duction in  the  number  of  statutes  printed.  Some  subjects  dis- 
cussed in  the  earlier  edition  have  been  omitted  as  of  minor  im- 
portance; notably  the  enumeration  of  the  purposes  for  which 
towns  may  expend  money  raised  by  taxation.  As  these  pur- 
poses are  now  brought  together  in  one  section  of  the  General 
Laws,  the  omission  of  this  subject  is  no  serious  loss;  but  it  is 
with  genuine  regret  that  the  author  has  been  obliged  from  lack 
of  space  to  omit  in  most  cases  the  abstracts  of  the  facts  of  the 
decisions  cited  in  the  notes,  which  were  contained  in  the  first 
edition. 

The  enactment  of  the  General  Laws  and  the  consequent  in- 
clusion of  all  tax  statutes  in  one  compilation  has  made  a  differ- 
ent arrangement  of  the  statutes  possible  from  that  which  was 
used  in  the  first  edition,  and  the  author  has  in  this  edition  set 
forth  the  laws  relating  to  taxation  in  the  exact  sequence  in  which 
they  appear  in  the  General  Laws,  and  has  used  no  other  chapter 
and  section  numbers  than  those  of  the  statutes.  While  this  ar- 
rangement may  not  in  all  cases  be  the  most  logical,  it  is  far  less 
confusing  to  those  using  the  book  who  are  accustomed  to  the 
arrangement  of  the  General  Laws  than  an  arrangement  made  in 
accordance  with  the  author's  individual  conceptions. 

Those  who  used  the  first  edition  and  experienced  the  diffi- 
culty in  finding  particular  topics  on  account  of  the  length  of  the 
sections  and  the  absence  of  section  headings  on  each  page  will 
doubtless  be  gratified  to  find  that  in  the  present  edition  the 
index  references  are  to  pages,  and  that  at  the  head  of  each  page 
can  be  found  the  number  both  of  the  page  and  of  the  chapter  and 
section  of  the  statutes  under  discussion. 

In  other  respects  the  arrangement  of  the  first  edition  has  been 
retained;  but  the  entire  work  has  been  rewritten  from  cover  to 
cover  and  there  is  comparatively  little  of  the  text  of  the  first 
edition  left  without  material  alteration. 

The  author  trusts  that  the  new  edition  of  the  work  will 
prove  helpful  to  those  interested  in  the  subject  of  taxation. 

Philip  Nichols. 


TABLE  OF  CONTENTS 
PART  I 

PRINCIPLES   OF  THE  LAW  OF  TAXATION 


NATURE  AND  CHARACTERISTICS  OF  TAXATION 

SECTION  PAGE 

1.  The  Power  of  Taxation  Defined 3 

2.  Taxes  Distinguished  from  other  Pecuniary  Impositions 3 

3.  Tax  Distinguished  from  a  Sale  of  a  Commodity 4 

4.  Taxation  Distinguished  from  Regulation 6 

5.  Tax  Distinguished  from  Inspection  Fee 9 

6.  Taxation  Distinguished  from  other  Governmental  Powers 10 

7.  Whether  a  Tax  is  a  Debt 11 

8.  The  Divisions  of  the  Power  of  Taxation 11 

9.  The  Power  of  Taxation  is  Inherent  in  the  Legislature  of  a  Sovereign  State  . .  15 

10.  Delegation  of  the  Power  of  Taxation ; . . . .  16 

11.  Construction  of  Tax  Laws 18 

12.  Limitations  upon  Taxing  Power  of  the  States  in  the  Constitution  of  the 

United  States 20 

EXPRESS  LIMITATIONS  OF  FEDERAL  CONSTITUTION 

13.  Duties  on  Imports  and  Exports 21 

14.  Duties  of  Tonnage 23 

15.  Impairment  of  the  Obligation  of  Contracts 24 

16.  Exemption  from  Taxation  as  a  Contract  Protected  by  the  Constitution. .  26 

17.  Discrimination  against  Citizens  of  other  States 30 

18.  Obligation  to  give  full  Faith  and  Credit  to  Acts  of  every  other  State ....  31 

19.  Limitations  on  the  Taxing  Powers  of  the  States  by  Treaties 32 

INTERSTATE  COMMERCE 

20.  The  Taxation  of  Interstate  Commerce,  and  of  Property  Engaged  Therein  33 

21.  Taxation  of  the  Privilege  of  Engaging  in  Interstate  Commerce 35 

22.  Taxation  of  Domestic  Corporations  Engaged  in  Interstate  Commerce ....  36 

23.  Excise  Taxes  upon  Foreign  Corporations 38 

24.  Taxation  of  Property  Used  in  Interstate  Commerce 43 

25.  Taxation  of  Receipts  Derived  from  Interstate  Commerce 45 

TAXATION   OF   THE   PROPERTY  AND   INSTRUMENTALITIES 
OF  THE   UNITED   STATES 

26.  Taxation  of  the  Property  of  the  United  States 46 

27.  Securities  Issued  by  Authority  of  the  United  States 48 

28.  Federal  Officers  and  Employees 49 

29.  Federal  Charters  and  Franchises 50 

30.  Interference  with  Federal  Taxing  Power 53 

v 


vi  Table  of  Contents 

DUE   PROCESS   OF  LAW 

SECTION  PAGE 

31.  Application  of  the  Fourteenth  Amendment 52 

32.  Discriminatory  Taxation 53 

33.  Double  Taxation      55 

34.  What  may  be  Subjected  to  a  Property  Tax 57 

35.  What  may  be  Subjected  to  an  Excise 58 

36.  Procedural  Rights  —  Assessment  and  Valuation 58 

37.  Procedural  Rights  —  Notice  and  a  Hearing 60 

38.  Procedural  Rights  —  Lists  and  Returns 63 

39.  Retroactive  and  Omitted  Assessments  —  Re-assessments 64 

40.  Due  Process  of  Law  in  the  Collection  of  Taxes 66 

41.  Retroactive  Provisions  Respecting  Collection  of  Taxes .". . .  68 

TERRITORIAL  JURISDICTION 

42.  The  Situs  of  Property  for  the  Purpose  of  Taxation 69 

43.  The  Situs  of  Tangible  Personal  Property 71 

44.  The  Situs  of  Intangible  Personal  Property 73 

45.  Particular  Classes  of  Intangible  Property 75 

46.  The  Situs  of  Personal  Property  in  the  Hands  of  a  Fiduciary  . .' 78 

47.  Situs  of  Property  for  Purposes  of  Inheritance  Taxation 79 

48.  Territorial  Jurisdiction  for  the  Levy  of  Excises 84 

49.  Territorial  Jurisdiction  for  the  Levy  of  Income  Taxes 84 

50.  Territorial  Jurisdiction  for  the  Collection  of  Taxes 85 

THE  CONSTITUTION   OF   MASSACHUSETTS 

51.  The  Limitations  on  the  Taxing  Power  in  the  Constitution  of  Massachusetts  86 

52.  Proportional  Taxation  under  the  Constitution  of  Massachusetts 89 

53.  Power  of  the  Legislature  to  Grant  Exemptions 91 

54.  Excises  under  the  Constitution  of  Massachusetts 94 

55.  What  Constitutes  a  Commodity 97 

56.  Reasonableness  of  Excises 99 

57.  Money  Bills 100 

THE   PURPOSES   FOR  WHICH   TAXES   CAN   BE   LEVIED 

58.  Taxes  can  be  Levied  only  for  the  Public  Use 101 

99.   What  Constitutes  the  Public  Use 103 

50.    Gratuities,  Bounties  and  Pensions 107 

61.  Special  Constitutional  Provisions  Affecting  the  Purposes  for  which  Taxes 

can  be  Levied 109 

62.  The  Purposes  for  which  a  City  or  Town  may  Levy  Taxes 112 

63.  Constitutional  Rights  of  the  Taxpayers  of  a  City  or  Town 113 

SPECIAL  ASSESSMENTS 

64.  Origin  and  Development  of  Special  Assessments 116 

65.  The  Constitutionality  of  Special  Assessments 119 

66.  The  Use  must  be  Public 120 

67.  The  Improvement  must  be  Local 121 

68.  The  Assessment  is  Limited  by  the  Cost  of  the  Improvement 123 

69.  The  Assessment  must  not  Exceed  the  Benefit 124 

70.  The  Owner  is  Entitled  to  a  Hearing 128 

71.  Assessments  under  the  Police  Power 129 

72.  Rights  of  the  Owner  of  Land  Assessed 130 


Table  of   Contents  vii 

PART   II 

COMMENTARIES  ON  THE  GENERAL  LAWS 
RELATING   TO  TAXATION 

SECTION  PAGE 

STATEMENT  SHOWING  SOURCES  AND  DISPOSITION  OF  PUBLIC 
REVENUES   WITH   AN   ABSTRACT   OF   THE   TAX   LAWS 133 

THE  PROVISIONS   OF  THE   GENERAL  LAWS 
RELATING  TO  TAXATION 

Chapter  4 
STATUTES 

7.   Meaning  of  Certain  Words  in  Construing  Statutes 139 

Chapter  6 
CERTAIN   OFFICERS   UNDER   THE   GOVERNOR  AND   COUNCIL 

21.  Board  of  Appeal 139 

Chapter  14 
DEPARTMENT  OF   CORPORATIONS   AND   TAXATION...     139 

Chapter  25 

DEPARTMENT   OF   PUBLIC   UTILITIES 

11  to  16  inc.   Assessment  of  Expenses  of  Department  upon  Corporations  and 

Municipalities 141 

Chapter  29 
STATE   FINANCE 142 

Chapter  32 
RETIREMENT   SYSTEMS   AND   PENSIONS 142 

Chapter  33 
MILITIA 142 

Chapter  35 

COUNTY  FINANCES 

30-31 .    Determination  of  Amount  of  County  Tax 143 

Chapter  36 
REGISTERS  OF  DEEDS 

22.  Noting  Instruments  Affecting  Tax  Deeds 144 

Chapter  40 

POWERS   AND   DUTIES   OF   CITIES   AND   TOWNS 

16-17-18.    Street  Sprinkling  Assessments 144 

53.   Restraint  of  Illegal  Appropriations 147 


viii  Table  of  Contents 

Chapter  41 

OFFICERS   AND   EMPLOYEES  OF   CITIES,   TOWNS   AND 

DISTRICTS 

SECTION  PAGE 

1  to  4  inc.   Election  of  Assessors  and  Collectors 150 

20.    Duties  of  Selectmen  in  Regard  to  Assessors 151 

24.   Terms  of  Assessors  and  Number  to  be  Chosen 154 

28.  Assistant  Assessors 155 

29.  Oath  of  Assessors 156 

30.  Penalty  for  False  Valuation 156 

37.  Collection  of  Taxes  by  Treasurer 157 

38.  Authorization  to  Use  Powers  of  Treasurer 158 

39.  Constable  as  Collector  of  Taxes 158 

40.  Temporary  Collector 159 

Chapter  44 
MUNICIPAL  FINANCE 

29.   Establishment  of  Tax  Limit 159 

41.  Expenses  of  Auditing  Municipal  Accounts 162 

57.   Interest  on  Debts  Incurred  by  a  City  or  Town  in  Aid  of  a  Railroad 162 

Chapter  48 
FIRES,   FIRE   DEPARTMENTS   AND   FIRE   DISTRICTS 

69  to  73  inc.   Taxation  by  Fire  Districts 162 

Chapter  51 

VOTERS 164 

Chapter  56 
VIOLATION   OF  ELECTION   LAWS 

1.   Penalty  for  False  Entry  by  Assessors 165 

Chapter  58 

GENERAL   PROVISIONS   RELATIVE   TO   TAXATION 

1  to  8  inc.   Supervision  of  Local  Taxation 165 

9-10.   Apportionment  of  the  State  Tax 167 

10A.   Disputed  Corporation  Taxes  as  Offset  to  State  Tax 170 

11-12.   Adjustment  of  Veterans'  Exemptions 171 

13  to  17  inc.  Reimbursement  for  Loss  of  Taxes  on  Land  Used  for  Public  Insti- 
tutions    171 

18-19.    Distribution  of  the  Income  Tax 172 

20.  Distribution  of  Tax  on  Business  Corporations 175 

21.  Distribution  of  Tax  on  Trust  Companies 177 

22.  Distribution  of  Tax  on  Street  Railway  Companies 177 

23.  Distribution  of  Tax  on  Railroad,  Telephone  and  Telegraph  Companies..  .  178 

24.  Distribution  of  Tax  on  Gas,  Electric  Light  and  Water  Companies 178 

24A.    Distribution  of  Interest  on  Overdue  Corporation  Taxes 178 

25.  Determination  of  Amounts  to  be  Distributed 179 

26.  Returns  of  Bank  Stock  Held  by  Fiduciaries  and  Partnerships 180 

27.  Repayment  by  the  State  of  Illegal  Corporation  and  Inheritance  Taxes. . .  181 

28.  Assessment  of  Deposits  with  State  Treasurer 181 

29-30.   Annual  Reports  of  Commissioner 182 


Table  of  Contents  ix 

Chapter  59 
ASSESSMENT.  OF  LOCAL  TAXES 

SECTION  PAGE 

The  Origin  and  Development  of  the  Statutes 183 

1.  The  Poll  Tax 186 

2.  What  Property  is  Subject  to  Taxation 188 

3.  What  is  Real  Estate  for  the  Purpose  of  Taxation 190 

4.  What  Personal  Property  is  Subject  to  Taxation 191 

5.  Exemptions  from  Taxation  —  General  Principles  and  the  History  and  De- 

velopment of  the  Statutes 193 

5,  cl.  1,  2.   Exemptions  Continued  —  Property  of  the  United  States  and  of  the 

Commonwealth 196 

5,  cl.  3.   Exemptions  Continued  —  Literary  and  Charitable  Institutions 197 

5,  cl.  4.   Exemptions  Continued  —  Agricultural  and  Horticultural  Societies. .  203 

5,  cl.  5.   Exemptions  Continued  —  Associations  of  Veterans 203 

5,  cl.  6.    Exemptions  Continued  —  Militir,  Units 203 

5,  cl.  7.   Exemptions  Continued  —  Fraternal  Orders 204 

5,  cl.  8,  9.   Exemptions  Continued  —  Retirement,  Annuity,  Pension  or  .Endow- 
ment Associations 204 

5,  cl.  10,  11.   Exemptions  Continued  —  Churches  and  Religious  Organizations  205 

5,  cl.  12,  13.    Exemptions  Continued  —  Cemeteries 206 

5,  cl.  14.   Exemptions  Continued  —  Water  Companies 207 

5,  cl.  15.   Exemptions  Continued  —  Credit  Unions 207 

5,  cl.  16.   Exemptions  Continued  —  Personal  Property  of  Corporations 208 

5,  cl.  17.   Exemptions  Continued  —  Women  and  Children 209 

5,  cl.  18.   Exemptions  Continued  —  The  Poor  and  Aged 210 

5,  cl.  19.   Exemptions   Continued  —  Tangible    Property    Situated   in   Other 

States 210 

5,  cl.  20.  Exemptions  Continued  —  Clothing,  Furniture  and  Tools 210 

5,  cl.  21.   Exemptions  Continued  —  Young  Animals  and  Fowls 211 

5,  cl.  22,  23.   Exemptions  Continued  —  Certain  Veterans  of  the  Civil  War, 

their  Wives  and  Widows : 212 

5,  cl.  24,  25.   Exemptions   Continued  —  Government,    State   and   Municipal 

Bonds 213 

5,  cl.  26.   Exemptions  Continued  —  Classified  Forest  Lands 214 

5,  cl.  27  to  32.   Exemptions     Continued  —  Intangible     Property     Otherwise 

Taxed 214 

5,  cl.  33.   Exemptions  Continued  —  Intangible  Property  Held  by  a  Fiduciary  215 

5.   Exemptions  Continued  —  Special  Statutes  and  Charters 215 

5.   Exemptions  Continued  —  Property  Devoted  to  Public  Use 217 

6-7.   Payment  in  Lieu  of  Tax  on  Property  Held  for  Certain  Municipal  Pur- 
poses   , 218 

8.   Excise  Tax  on  Certain  Ships  or  Vessels 220 

9-10.   Place  of  Assessment  of  Poll  Taxes 220 

Rules  for  Determining  Domicile 221 

11.  Where  and  to  Whom  Real  Estate  is  Assessed 226 

12.  Mortgaged  Land 230 

13.  Determination  of  Value  of  Mortgage  Interest 231 

14.  Ownership  of  Mortgaged  Property  for  Purposes  of  Taxation 232 

15.  Obligation  to  Pay  Taxes  as  Between  Landlord  and  Tenant 233 

Life  Tenant  and  Remainderman 235 

16-17.   Real  Estate  of  a  Deceased  Person 236 

18.   Where  and  to  Whom  Personal  Property  is  Assessed 237 

18,  cl.  1.   Tangible  Personal  Property 239 


x  Table  of  Contents 

SECTION  PAGE 

18,  cl.  2.   Machinery  and  Personal  Property  Leased  for  Profit 241 

18,  cl.  3.    Personal  Property  of  Deceased  Persons 243 

18,  cl.  4.    Personal  Property  of  Joint  Owners 246 

18,  cl.  5.   Conduits,  Wires,  Pipes  and  Poles 246 

18.  cl.  6,  7.    Partnership  Property 248 

19.  Personal  Property  Mortgaged  or  Pledged 250 

20.  Warrants  for  Assessment  of  State  Tax 251 

21.  The  Taxes  which  the  Assessors  are  Required  to  Assess 251 

22.  Omission  of  Shares  in  National  Banks 252 

23-24.   Amount  of  Annual  Assessment  —  Fixing  of  Tax  Rate 253 

25.  Overlay 255 

26.  Inclusion  of  State,  County  and  Town  Taxes  in  One  Assessment 256 

27-28.    Remedy  if  Assessors  Fail  to  Act 257 

29.  The  Notice  to  Taxpayers  to  Bring  in  Lists 258 

30.  Furnishing  of  Blank  Lists 261 

31.  Verification  of  List  by  Oath  of  Taxpayer 261 

32.  Lists  not  Open  to  Public  Inspection 262 

33.  Lists  of  Property  in  Storage  Warehouses 263 

34.  Statement  of  Amount  Secured  by  Mortgage 263 

35.  Lists  to  be  Taken  as  True  —  Inquiries  by  Assessors 264 

36-37.     Doom  of  the  Assessors  in  Absence  of  List 266 

38.   The  Annual  Valuation  of  Taxable  Property 267 

39  to  42  inc.  Valuation  of  Property  of  Telephone  and  Telegraph  Companies. .  270 

43.    The  Valuation  List  of  the  Assessors 271 

44-45.    Contents  of  the  Valuation  List 273 

46.    Directions  to  Assessors  in  Making  Lists 277 

47-48.   Tables  of  Aggregates 278 

49  to  52  inc.  Further  Requirements  as  to  Valuation  List 279 

53  to  56  inc.  Collector's  List  and  Warrant 280 

57-58.    Interest  and  Discount  on  Taxes 282 

59.  Abatement  by  Assessors 285 

60.  Record  of  Abatements 286 

61.  Effect  of  Failure  to  File-List 287 

62.  Payment  of  Costs  by  Petitioner 293 

63.  Notice  of  Decision 293 

64.  Appeal  to  County  Commissioners 293 

65.  Appeal  to  the  Superior  Court 297 

66.  Provision  for  Speedy  Trial 298 

67.  Reference  to  Commissioner 299 

68.  Judgment  and  Costs 299 

69.  Reimbursement,  Interest  and  Costs 300 

70.  Certificate  of  Abatement 301 

71-72.   Abatement  of  Uncollectible  Taxes 302 

73.  Abatement  of  Taxes  on  Telephone  and  Telegraph  Companies 302 

74.  Notice  to  Commissioner  of  Abatement  of  Local  Taxes  on  Corporations. . .  303 

75.  Omitted  Assessments 304 

76.  Revision  of  Valuation 306 

77-78.   Reassessment  of  Taxes 306 

79-80-81.    Apportionment  of  Taxes  on  Real  Estate  Subsequently  Divided.  .  .  309 

82.  Assessment  Partially  Invalid 311 

83.  Return  by  Assessors  of  Property  of  Corporations  Locally  Taxable 313 

84-85-86.    Other  Returns  Required  of  Assessors 313 

87.  Personal  Liability  of  Assessors 314 

88.  Compensation  of  Assessors 317 

89  to  92  inc.  Penalties  for  Evasion  of  Taxation 318 

93-94.   Penalties  for  Neglect  by  Assessors 319 


Table  or  Contents  xi 

Chapter  60 
COLLECTION   OF   LOCAL  TAXES 

SECTION  PAGE 

1.  Definitions * 31!) 

2.  General  Duties  of  Collectors 321 

3.  Tax  Bill 323 

4-5.    Collection  of  Poll  Taxes 324 

6  to  12  inc.  Collector's  Books,  Records,  Accounts  and  Vouchers 324 

13.  Bond  of  Collector 326 

14.  Special  Collector 328 

15.  Fees 328 

16.  Demand 330 

17.  Time  of  Making  Levy 331 

18.  Summons 332 

19.  Levy  without  Demand 332 

20.  Obligation  to  Exhibit  Certificate  of  Abatement 332 

21.  Effect  of  Misnomer 332 

22.  Partial  Payment  of  Tax 333 

23.  Statement  of  Existing  Liens 334 

Collection  by  Distress 

24.  Seizure  of  Personal  Property  —  Exemptions 335 

25-26.    Detention,  Notice  and  Sale 336 

27.  Distress  of  Stock  or  Produce  to  Collect  Tax  on  Land 338 

28.  Return  of  Surplus  to  Owner : 338 

Collection  by  Arrest  and  Imprisonment 

29.  When  Arrest  is  Authorized 338 

30-31-32.    Certificate  of  Arrest  —  Discharge 339 

33.  Collector  may  Require  Aid 340 

34.  Warrant  to  Officer  — Release  and  Re-arrest 340 

Collection  by  Suit 

35.  Action  by  the  Collector 342 

36.  Collection  from  the  Estates  of  Deceased  Persons  and  of  Insolvents  and 

Bankrupts 344 

Collection  by  Sale  or  Taking  of  Land 

37.  Extent  and  Duration  of  Lien 349 

38-39.    Demand  on  Mortgagee  or  at  Designated  Place 352 

40-41-42.   Publication  and  Posting  of  Notice  of  Sale 352 

43-44.   Conduct  of  the  Sale 354 

45.  The  Collector's  Deed 357 

46.  Reimbursement  of  Purchaser  at  Invalid  Sale 360 

47.  Statement  of  Purchaser's  Residence 362 

48-49.   Purchase  by  the  City  or  Town 363 

50.  Recitals  in  Deed  to  Town 364 

51.  Sale  of  Parcels  of  Small  Value 365 

52.  Management  of  Lands  Bought  by  Town 365 

53-54-55.   Taking  of  Land  for  Non-Payment  of  Taxes 365 

56.  Naming  of  One  Record  Owner  Sufficient 366 

57.  Affidavit  of  Collector 367 

58-59.    Rights  of  Mortgagors  and  Mortgagees  Against  Each  Other 368 

60.  Payment  of  Taxes  by  Person  Other  than  the  Owner 370 

61.  Collection  of  Taxes  Subsequent  to  Sale  or  Taking , ,  .  373 

62.  Redemption  from  Tax  Sale 374 

63.  Recording  Certificates  of  Payment  to  Collector 377 


xii  Table  of  Contents 

SECTION  PAGE 

64.   Tax  Title  Absolute  only  after  Foreclosure 379 

65-66-67.    Petition  for  Foreclosure  —  Notice  —  Default 380 

68.  Redemption  by  Leave  of  Court 381 

69.  Decree  Barring  Redemption 381 

70-71-72.    Procedure  for  Contesting  Validity  of  Tax  Title 381 

73.  Deposit  of  Costs 382 

74.  Recording  Notice  of  Petition 382 

75.  Practice  and  Procedure  in  Foreclosure  Cases 383 

76.  Relief  in  Equity 383 

77-78.    Disposition  of  Land  Bought  or  Taken  by  Town 386 

79-80-81.   Sale  of  Lands  of  Low  Value  Held  by  City  or  Town  Under  Tax 

Titles 388 

82-83-84.    Proceedings  if  Tax  Title  is  Deemed  Invalid 390 

85-86.    Lien  of  Co-Tenants 391 

87.   Decision  of  Town  whether  to  Sell  or  Take 393 

Miscellaneous  Provisions 

88-89-90.   Commission  of  Tax  List  to  Sheriff 393 

91.  Restraint  of  Foreign  Corporations  and  Non-Residents 394 

92.  Appointment  of  Deputy  Collectors 395 

93.  Withholding  Money  Due  Persons  Owing  Taxes 395 

94.  Collector's  Accounts  to  be  Exhibited  Bi-Monthly 396 

95.  Personal  Liability  of  Collector 396 

96.  Removal  of  Collector 399 

97.  Commission  of  "Uncollected  Taxes  to  Collector's  Successor 399 

98.  Remedies  for  Taxes  Illegally  Assessed 400 

Action  at  Common  Law  to  Recover  Back  a  Tax 400 

Action  at  Common  Law  in  Case  of  Informality 405 

Payment  under  Duress  or  Protest 406 

Action  of  Tort  against  the  City  or  Town 408 

Bill  in  Equity 408 

Petition  for  Writ  of  Mandamus 409 

99  to  104  inc.   Penalties 412 

105.   Forms  in  Proceedings  for  Collection  of  Taxes 412 


Chapter  61 

TAXATION   OF  FOREST   LANDS 426 

Chapter  62 
TAXATION  OF  INCOMES 

Origin  and  Purpose  of  the  Income  Tax 428 

Limitation  upon  the  Taxation  of  Incomes 432 

1.   Taxation  of  Income  from  Certain  Intangibles 436 

1  (a).   Interest  from  Bonds,  Notes  and  Other  Debts 437 

Deposits  in  Banks 439 

United  States,  State  and  Municipal  Bonds 440 

Interest  on  Mortgages 440 

Pawnbrokers 441 

1  (b).    Dividends  on  Stock  in  Foreign  Corporations 441 

1  (c)  (d)  (e).    Unincorporated  Associations 443 

1  (f).    Securities  Held  in  Pledge  or  on  Margii: 446 


Table  of  Contents  xiii 

SECTION  PAGE 

1  (g).   Distribution  of  Capital 446 

2-3-4.   Interest  Deduction .' 447 

5  (a).   Annuities , 450 

5  (b).   Income  from  Professions,  Employments,  Trade  or  Business 451 

5  (c).   Gains  from  Sales  of  Intangibles 455 

5  (d).   Income    of    Unincorporated    Associations    Taxable    under    Section 

Five 457 

5  (e).   Income  from  Intangibles  not  Taxable  under  Section  Five 458 

6.  Determination  of  Business  Income 458 

6  (a).   Deductions  —  Business  Expenses 459 

6  (b).   Deductions  Continued  —  Depreciation,  Obsolescence  and  Depletion. .  460 

6  (c).   Deductions  Continued  —  Taxes  Paid 461 

6  (d).   Deductions  Continued  —  Interest  on  Business  Debts 461 

6  (e).   Deductions  Continued  —  Losses  and  Destruction  of  Capital  Assets. . .  462 

6  (f).   Deductions  Continued  —  Losses  from  Bad  Debts '. '. 462 

6  (g).   Deductions  Continued  —  Income  Attributable  to  Capital  Invested  in 

the  Business 463 

6  (h).    Deductions  Continued  —  Allowance  for  Wife,  Children  or  Dependent 

Parents 464 

7.  Accrual  Basis  for  Determining  Income  Authorized 465 

8.  Exemptions 467 

9.  Estates  of  Deceased  Persons 468 

10.  Estates  Held  in  Trust .* 470 

11.  Income  from  Non-Resident  Trustees 473 

12.  Claim  of  Exemption  for  Beneficiary 474 

13.  Application  of  Foregoing  Provisions  to  Other  Fiduciaries 475 

14.  Corporations  Acting  as  Trustee 475 

16.  Settlement  of  Taxes  on  Fiduciaries 476 

17.  Partnerships 476 

18.  Establishment  of  Partners'  Exemptions 478 

19.  Resident  Members  of  Partnerships  Having  no  Place  of  Business  in  Massa- 

chusetts    479 

20.  Procedural  Provisions  Applicable  to  Partnerships 479 

21.  Partnerships  with  Transferable  Shares 479 

22.  Returns  of  Income 480 

23.  Fiduciaries'  Returns 482 

24.  Further  Provisions  Respecting  Returns 482 

25.  Time  as  of  Which  Liability  to  Tax  is  Fixed 483 

26-27.    Notices  and  Returns 484 

28.  Omitted  and  Supplementary  Returns 485 

29.  Extension  of  Time  for  Filing  Returns 486 

30.  Verification  of  Returns 486 

31.  Mandamus  to  Compel  Filing  of  Return 488 

32.  Privacy  of  Returns 488 

33-34.   Information  at  the  Source 489 

35.  Assessment  of  Persons  Who  Have  Filed  Returns 491 

36.  Assessment  of  Persons  Who  Have  Not  Filed  Returns 491 

37.  Omitted  Assessments 492 

38.  Rules  and  Regulations  of  the  Commissioner 493 

39  to  42  inc.   Collection  of  Income  Taxes 493 

43-44.   Abatement  by  the  Commissioner 494 

45-46.   Appeal  to  the  Board  of  Appeal 496 

47.  Appeal  to  the  Superior  Court 498 

48.  Statutory  Remedies  Exclusive .-...' ' 499 

49  to  53  inc.   Loss  of  Exemption  of  Principal  by  Failure  to  Return  Income. . .  500 


xiv  Table  of  Contents 

SECTION  PAGE 

54.   Effect  of  Unconstitutionality  of  Part  of  the  Chapter 501 

55  to  60  inc.   Penalties 502 

Chapter  63 

TAXATION  OF  CORPORATIONS 

Taxation  of  Bank  Shares 

1.   Rate  and  Place  of  Taxation . ...  505 

2-3.    Collection  of  Tax gjj 

4  to7  inc.    Distribution  of  the  Tax 512 

8-9-10.   Establishment  of  Exemptions 514 

Savings  Banks,  Savings  Departments  of  Trust 
Companies  and  Co-operative  Banks 

11.  Excise  on  Savings  Banks  and  Savings  Departments 515 

12.  Exemption  of  Portions  of  Deposits 516 

13.  Returns  of  Amount  of  Deposits 517 

14.  Tax  Exempt  Investments  in  Savings  Department  not  Basis  of  Deduction 

from  other  Taxes 51g 

15.  Exemption  of  Deposits  from  other  Taxes 51g 

16.  Effect  of  Incapacity  to  do  Business 519 

17.  Massachusetts  Hospital  Life  Insurance  Co 520 

18.  Saving  Bank  Insurance 520 

19.  Co-operative  Banks 521 

Insurance  Companies 

20.  Life  Insurance  Companies 521 

21.  Retaliatory  Tax  on  Foreign  Life  Insurance  Companies 523 

22-23.    Insurance  Companies  doing  Business  other  than  Life  Insurance 524 

24.    Determination  of  Amount  of  Premiums  Tax 526 

25-26-27.   Returns  and  Inspection  of  Books 527 

28-29.   Assessment  and  Collection  of  Tax 528 

Domestic  Business  Corporations 

Early  Methods  of  Taxing  Corporations 529 

The  Development  of  the  Franchise  Tax 531 

The  Establishment  of  the  Present  System 533 

30,  cl.  1-2.    Definitions.     To  what  Corporations  Applicable 534 

30,  cl.  3.   Corporate  Excess  —  Valuation  and  Deductions 536 

Valuation  of  Shares 536 

Deductions  —  In  General 538 

Deductions  —  (a)  Real  Estate,  Machinery  and  Structures 539 

Deductions  —  (b)  Non-taxable  Securities 541 

Deductions  —  (c)    Tangible   Property  Situated   in   Another   State   or 

Country 542 

Deductions  —  (d)  Cash  and  Bills  Receivable  Attributable  to  an  Office 

Outside  the  Commonwealth 543 

30,  cl.  4.   Definitions    Continued  —  Corporate    Excess    Employed    with  the 

Commonwealth 544 

30,  cl.  5.    Definitions  Continued  —  Net  Income 545 

30.  cl.  6.    Definitions  Continued  —  Taxable  Year 547 

31.  Deductions  not  Allowed 547 

32.  Rate  of  Tax  upon  Domestic  Corporations 548 

33-34.   Affiliated  and  Subsidiary  Corporations 550 

35.   Returns 551 


Table  of  Contents  xv 

SECTION  PAGE 

36.  Effect  of  Correction  of  Federal  Return 553 

37.  Income  Allocable  in  Entirety 554 

38.  Allocation  of  Remainder  of  Net  Income 555 

Foreign  Corporations 

39.  Excise  on  Foreign  Corporations 560 

40.  Returns  —  Corporate  Excess  Employed  within  the  Commonwealth 565 

41^2.   Allocation  of  Income   565 

43.  Credit  for  Dividends  Taxed  to  the  Stockholders ,  567 

Assessment  and  Collection  of  Excise  on  Business  Corporations 

44.  Assessment  of  Excise  Tax 569 

45.  Assessment  of  Additional  Tax 571 

46.  Double  Assessment  on  Refusal  to  File  Proper  Return 571 

47.  Rules  and  Regulations 572 

48.  Collection 572 

49-50.   Penalties 573 

51.  Application  for  Abatement 573 

52.  Effect  of  Unconstitutionality 573 

Taxation  of  Public  Service  Corporations  and  Trust  Companies 

53-54.    Returns 574 

55.  Valuation  and  Deductions 578 

56.  Deduction  of  Mortgages  held  by  Trust  Companies 579 

57.  Conflict  between  Valuations  of  Commissioner  and  Assessors 580 

58.  Rate  of  Taxation 582 

59.  Additional  Excise  upon  Abatement  of  Local  Tax 583 

60.  Notice  of  Tax  and  Application  for  Correction 583 

61  to  66  inc.   Commutation  Tax  on  Street  Railways 584 

Miscellaneous  Provisions  Applicable  to  All  Corporations 

67.  Excise  on  Corporations  Interested  in  Ships  and  Vessels 589 

68.  Excises  on  Special  Privileges  not  Affected  by  this  Chapter 591 

69.  Inspection  of  Books  and  Papers 591 

70.  Interest  on  Overdue  Taxes 593 

71.  Application  to  the  Board  of  Appeal 593 

72-76.  inc.   Collection  of  Corporation  Taxes 594 

77-78.   Remedy  of  Corporation  in  case  of  Taxes  Illegally  Assessed 596 

79-80.   Penalties  and  their  Enforcement 599 


Chapter  64 

TAXATION  OF  STOCK  TRANSFERS 600 

Chapter  65 
TAXATION   OF  LEGACIES  AND  SUCCESSIONS 

History  of  the  Inheritance  Tax 605 

Constitutionality  of  Inheritance  Taxes 606 

1.  Subjects  and  Rates  of  Taxation 608 

Transactions  which  are  Subject  to  the  Tax 613 

What  Property  is  Subject  to  the  Tax 616 

Exemptions 619 

2.  Powers  of  Appointment 621 

3.  Gifts  in  Contemplation  of  Death •.  623 

4.  Shares  in  Multi-State  Corporations 625 


xvi  Table  of  Contents 

SECTION  PAGE 

5.  Reciprocal  Exemption  of  Non-Resident  Decedents 626 

6.  Persons  Liable  for  the  Tax 627 

7-8.   Time  of  Payment 627 

Summary 632 

9.   Lien  for  Tax 633 

10.  Delivery  of  Assets  to  Foreign  Executor 634 

11.  Interest  and  Discount 635 

12.  Tax  Chargeable  to  Capital 635 

13.  Value  for  Purposes  of  the  Inheritance  Tax 636 

14.  Payment  of  Taxes  on  Future  Interest 640 

15.  Deposit  or  Bond  for  Payment  of  Tax  on  Future  Interest 642 

16.  Excessive  Compensation  of  Executor  Taxable 643 

17.  Executor  Liable  for  Tax 644 

18.  Legacy  Charged  on  Real  Estate 645 

19.  Provision  for  Payment  of  Tax  not  Taxable 646 

20.  Repayment  of  Tax  on  Property  Returned 646 

21.  Sale  of  Real  Estate  for  Payment  of  Tax 647 

22.  Inventory  and  Appraisal 647 

23-24.    Non-Payment  of  Tax  as  Affecting  Allowance  of  Probate  Accounts 648 

25-26.    Determination  of  Value 649 

26.  Determination  of  Value 650 

27.  Assessment,  Certification  and  Abatement 651 

28.  Examination  on  Oath  of  Persons  having  Information 653 

29.  Dooming  on  Refusal  of  Information 654 

30.  Jurisdiction  of  the  Probate  Court ' 654 

31.  Enforcement  of  Lien  on  Real  Estate 656 

32.  Proceedings  for  the  Recovery  of  Unpaid  Taxes 656 

33.  Remedies  for  Collection  of  Taxes 657 

Summary 658 

34.  Recovery  of  Penalties  and  Forfeitures 660 

35.  Papers  not  Open  to  Public  Inspection 660 

36.  The  Tax  not  Retrospective 660 

Chapter  66 

PUBLIC   RECORDS 663 

Chapter  70 

SCHOOL  FUNDS   AND   OTHER  STATE   AID   FOR 
PUBLIC   SCHOOLS 

1  to  6  inc.   State  Aid  from  the  Income  Tax 664 

Chapter  79 

EMINENT   DOMAIN 

General  Provisions  as  to  Betterments 667 

39.   Settlement  and  Assumption  of  Betterments 667 

Chapter  80 

BETTERMENTS 

1.   Assessment  of  Betterments 669 

What  Benefits  can  be  Assessed 672 

Exemptions  from  Special  Assessments 675 

Time  of  Levy 676 


Table  of  Contents  xvii 

SECTION  PAGE 

Assessment  Limited  to  the  Actual  Cost  and  to  the  Actual  Benefit 678 

Street  Betterments  in  the  City  of  Boston 680 

2.  Plan  and  Estimate 681 

3.  Surrender  of  Estate  Assessed 682 

4.  Collection 684 

Remedies  for  Excessive  or  Illegal  Assessments 686 

Petition  for  Certiorari 687 

Action  of  Contract  against  the  City  or  Town 688 

What  Irregularity  Invalidates  an  Assessment*. 690 

5.  Petition  for  Abatement 692 

6.  Extension  of  Time  for  Filing  Petition 693 

7.  Appeal  to  the  Superior  Court 693 

8.  Death  of  Person  Entitled  to  Petition 695 

9.  Procedure  on  Petition  to  Superior  Court 696 

10.  Appeal  to  the  County  Commissioners 697 

11.  Contribution  by  Lessee 697 

12.  Duration  of  Lien 699 

13.  Interest  and  Apportionment 700 

14.  Apportionment  by  Assessors 701 

15.  Subsequent  Division  of  Land  Assessed 702 

16.  Re- Assessment 703 

17.  Provisions  of  Chapter  Eighty  Exclusive 704 

Chapter  82 

THE  LAYING   OUT  AND   RELOCATION   OF   PUBLIC   WAYS 

11.  Assessment  of  Cost  of  Relocation 705 

12.  Assessment  of  Cost  of  Laying  Out,  Alteration,  Repair  or  Discontinuance.  706 
24,  26.   Assessment  of  the  Cost  of  Private  Ways 707 

Chapter  83 

SEWERS,   DRAINS  AND   SIDEWALKS 

14.  Sewer  Assessments 709 

Sewer  Assessments  in  the  City  of  Boston 711 

15.  Assessment  for  Sewerage  System  at  Uniform  Rate 714 

16.  Annual  Charges  for  the  Use  of  Sewers 716 

17.  Payment  for  Permanent  Privilege  of  Using  Sewers 717 

18.  Determination  of  Method  of  Assessment 717 

19.  Extension  of  Time  for  Payment 718 

20.  Fee  for  the  Use  of  Sewers 718 

21.  Land  Abutting  upon  more  than  one  Way 718 

22.  Sewers  Built  by  Land  Owners 719 

23.  Payment  of  Part  of  Cost  by  the  City  or  Town 719 

24.  Assessment  for  Particular  Sewers 719 

26.  Sidewalk  Assessments 720 

Sidewalk  Assessments  in  the  City  of  Boston 722 

27.  Lien  for  Sewer  and  Sidewalk  Assessments 724 

28.  Adoption  of  Administrative  Provisions  of  Betterment  Law 726 

Chapter  85 

REGULATIONS   RELATIVE   TO  WAYS  AND   BRIDGES 

6.   Assessments  for  the  Cost  of  Removing  Snow  from  Sidewalks 727 


xviii  Table  of  Contents 

Chapter  111 
PUBLIC   HEALTH 

SECTION  PAGE 

132  to  140  inc.   Assessment  for  Drainage  of  Wet  Lands 728 

Chapter  132 

FORESTRY 
18  to  29  inc.   Assessment  for  the  Extermination  of  Insect  Pests 732 

Chapter  143 
INSPECTION,   REGULATION   AND   LICENSES   FOR   BUILDINGS 
61.   Notice  to  Assessors  of  Building  Permits .  . .     763 

Chapter  147 

STATE   AND   OTHER   POLICE 

40.   Tax  on  Gross  Receipts  of  Boxing  Matches 737 

Chapter  156 

BUSINESS   CORPORATIONS 

53  to  55  inc.   Organization  and  Filing  Fees 738 

Chapter  160 

RAILROADS 

87.   Taxation  of  Railroad  Property 740 

Chapter  161 
STREET  RAILWAYS 
78.   Assessments  on  Street  Railway   Companies  for  Widening  or  Altering 

Public  Ways 740 

Chapter  164 
MANUFACTURE   AND   SALE   OF   GAS   AND   ELECTRICITY 

61.   Assessment  of  Cost  of  Laying  Pipes  and  Wires 741 

Chapter  175 
INSURANCE 

19.   Liability  of  Insurance  Companies  to  Taxation 742 

Chapter  184 
GENERAL   PROVISIONS   RELATIVE   TO   REAL   PROPERTY 

22.    Covenants  against  Encumbrances 742 

Special  Assessments 745 

Chapter  185 
THE   LAND   COURT 

1.   Jurisdiction  over  Foreclosure  of  Tax  Titles •  •  •     747 

Chapter  193 
APPOINTMENT   OF  ADMINISTRATORS 
3.   Application  by  Commissioner  of  Corporations  and  Taxation 747 


Table  of  Contents  xix 

Chapter  198 
INSOLVENT  ESTATES  OF  DECEASED  PERSONS 

SECTION  PAGE 

1.  Taxes  a  Preferred  Claim 748 

Chapter  206 

ACCOUNTS  AND  SETTLEMENTS  OF  RECEIVERS 

31.   Taxes  a  Preferred  Claim 749 

Chapter  216 

COURTS  OF  INSOLVENCY 

118.   Preferred  Claims 749 

Chapter  217 

JUDGES  AND  REGISTERS   OF    PROBATE   AND  INSOLVENCY 

16.   Register  to  Send  Copies  of  Inventories  to  Commissioner 750 

Chapter  252 

IMPROVEMENT  OF  LOW  LANDS  AND  SWAMPS 

13.   Assessment  of  Cost  of  Draining  Low  Lands 751 

19.   Roads  to  Swamps  and  Quarries 753 

APPENDIX 

Additional  Statutes  Affecting  Taxation 755 

Additional  Taxes  Imposed  for  Temporary  Purposes 756 

List  of  Forms „ 760 


TABLE  OF  CASES 

[Citations  are  to  Pages] 

A.  J.  Tower  Co.  v.  Commonwealth,  223  Mass.  371  (1916) 

20,  57,  509,  512,  514,  541,  547 

Abbott  v.  Frost,  185  Mass.  398  (1904)   232,  351 

Aberdeen  Bank  v.  Chehalis  County,  166  U.  S.  440  (1897)   .     64,  508,  512 

Abington  v.  North  Bridgewater,  23  Pick.  170  (1839)  222,  223,  225 

Adams,  Petitioner,  165  Mass.  497  (1896)    : 114 

Adams  v.  Mills,  126  Mass.  278  (1879)    359,  375 

Adams  v.  Nantucket,  11  Allen  203  (1865)    223 

Adams  v.  New  Bedford,  155  Mass.  317  (1891)    511 

Adams  Express  Co.  v.  Kentucky,  166  U.  S.  171  (1897)   71 

Adams  Express  Co.  v.  Ohio  State  Auditor,  165  U.  S.  221  (1897)    60,  71 

Adams  Express  Co.  v.  Ohio  State  Auditor,  166  U.  S.  185  (1897)    ..     57,  71,  78 

Agassiz   v.  Trefry,  266  Fed.  Rep.  8   (1920)    499 

Alaska  Fish  etc.  Co.  v.  Smith,  255  U.  S.  44  (1921) 7 

Albany  County  v.  Stanley,  105  U.  S.  305  (1881) 55 

Albuquerque  First  Nat.  Bank  v.  Albuquerque,  208  U.  S.  548   (1908)     509,  511 

Alden  v.  Springfield,  121  Mass.  27  (1876)    694 

Alexander  v.  Pitts,  7  Cush.  503  (1851)   353,  377 

Alger  v.  Easton,   119  Mass.  77    (1875)    335,408 

All  Saints  Parish  v.  Brookline,  178  Mass.  404  (1901)   206,  403 

Allen  v.  Charlestown,   109  Mass.  243   (1872)    672 

Allen  v.  Charlestown,  111   Mass.  123  (1872)    129,710 

Allen  v.  Pullman's  Palace  Car  Co.,  191  U.  S.  171  (1903)   42 

Almy  v.  California,  24  How.  174  (1860)   22 

Alvord  v.  Collin,  20  Pick.  418  (1838)    151,  256,  257,  354 

American  Can  Co.  v.  Commonwealth,  188  Mass.  1   (1905)   41 

American  Express  Co.  v.  Indiana,  165  U.  S.  255  (1897)   60 

American  Glue  Co.  v.  Commonwealth,  195  Mass.  529  (1907)   56,  77,  542 

American  Mfg.  Co.  v.  St.  Louis,  250  U.  S.  459,  463  (1919)   4 

American  Mut.  Liability  Ins.  Co.  v.  Commonwealth,  224  Mass.  299  (1916)     527 

American  Printing  Co.  v.  Commonwealth,  231  Mass.  237  (1918)   757 

American  Refrigerator  Transit  Co.  v.  Hall,  174  U.  S.  70  (1899)    44 

American  Steel  etc.  Co.  v.  Speed,  192  U.  S.  520  (1904)   21,  22,  39,  43,  44 

American  Uniform  Co.  v.  Commonwealth,  237  Mass.  42   (1921)    100,  739 

American   Unitarian   Asso.   v.  Commonwealth,   193   Mass.   470   (1907)     124,  680 

Amesbury  etc.  Mfg.  Co.  v.  Amesbury,  17  Mass.  461  (1821)   240,  531 

Amherst  College  v.  Assessors  of  Amherst,  173  Mass.  232   (1899)    200 

Amherst  Col.  v.  Assessors  of  Amherst,  193  Mass.  168  (1906)     200,  262,  286,  289 

Amory  v.  Lowell,  1  Allen  504  (1861)   372 

Amory  v.  Melvin,  112  Mass.  83  (1873)  234 

Andover  etc.  Turnpike  Corp.  v.  Gould,  6  Mass.  40  (1809)  11 

Andrews  v.  Worcester  etc.  Insurance  Co.,  5  Allen  65  (1862)  69 

Anthony  v.  Adams,  1  Met.  284  (1840)    401 

Antoni  v.  Greenhow,  107  U.  S.  769  (1882)   24 

Appleton  v.  Hopkins,  5  Gray  530  (1855)    11,  339 

Armour  v.  Virginia,  246  U.  S.  1  (1918)   39 

Armour  Packing  Co.  v.  Lacy,  200  U.  S.  226  (1906)  39 

Armstrong  v.  Athens  County,  16  Pet.  281  (1842)  26,  28 

xxi 


xxii  Taxation  in  Massachusetts 

[Citations  are  to  Pages] 

Arnold  v.  Cambridge,  106  Mass.  352   (1871)    124   722 

Ashley  v.  Bristol  County  Commissioners,  166  Mass.  216  (1896)  292 

Ashley  v.  Ryan,  153  U.  S.  436   (1894) ".]       37 

Askren  v.  Continental  Oil  Co.,  252  U.  S.  444  (1920)   4,  9,  35 

Aspinwall  v.  Boston,  191  Mass.  441   (1906) 668 

Asylum  v.  New  Orleans,  105  U.  S.  362  (1881) 26 

Atchison  etc.  R.  R.  Co.  v.  O'Connor,  223  U.  S.  280  (1912) 40  41   42 

Atkin  v.  Kansas,  191  U.  S.  207  (1907)  ..........    'l07 

Atkins  v.  Boston,  188  Mass.  77  (1905) 673 

Atkinson  v.  Newton,  169  Mass.  240  (1897)   668,  672,  688 

Atlantic  etc.  R.  R.  Co.  v.  Georgia,  98  U.  S.  359  (1878)  '.....'    29 

Atlantic  etc.  Tel.  Co.  v.  Philadelphia,  190  U.  S.  160  (1903)  9,"  34,  43 

Atlantic  Maritime  Co.  v.  Gloucester,  214  Mass.  348  (1913)   289,  291 

Atlantic  Maritime  Co.  v.  Gloucester,  228  Mass.  519  (1917)  24o'  241 

Attorney  General  v.  Barney,  211  Mass.  134  (1912)   > 20,  83,  638 

Attorney   Gen.   v.  Bay  State   Mining   Co.,  99   Mass.   148    (1868)     14,  40,  41,  98 

Attorney  General  v.  Boston,  123  Mass.  460  (1877)   105 

Attorney  General  v.  Boston,  142  Mass.  200  (1886)    723 

Attorney  General  v.  B.  &  A.  R.  R.  Co.,  233   Mass.  460   (1919)    550,  757 

Attorney  General  v.  Cambridge,  16  Gray  247  (1860)   114 

Attorney  General  v.  Clark,  222  Mass.  291  (1915)   18,  615 

Attorney  General  v.  East  Boston  Co.,  222  Mass.  450  (1916) 11,  593,  596,  598 

Attorney  General  v.  Electric  Storage  Battery  Co.,  188  Mass.  239   (1905) 

39,  40,  41,  98,  562,  596 

Attorney  General  v.  Laycock,  221  Mass.  146  (1915)   344,  651,  653,  658 

Attorney  General  v.  Mass.  Pipe  Line  Gas  Co.,  179  Mass.   15   (1901)     537,  549 

Attorney  General  v.  Rafferty,  209  Mass.  321  (1911)  649 

Attorney  General  v.  Roche,  219  Mass.  601   (1914)    649,  650,  653 

Attorney  General  v.  Skehill,  217  Mass.  364  (1914)    650,  653,  658 

Attorney  General  v.  Stone,  209  Mass.  186  (1911)  ....     607,  630,  632,  635,  649,  661 

Attorney  General  v.  Sullivan,  163  Mass.  446  (1895)    529 

Attorney  General  v.  Thorp,  230  Mass.  25  (1918)   622 

Attorney  General  v.  Ware  River  R.  R.  Co.,  233  Mass.  466  (1919)   757 

Attorney  General  v.  Western  Union  Tel.  Co.,  141  U.  S.  40  (1891)    ....     45,  70 

Attorney  General  v.  Williams,  174  Mass.  476  (1899)  103,  114 

Auffmordt  v.  Hedden,  137  U.  S.  310  (1890)    61 

Austin  v.  Aldermen  of  Boston,  14  Allen  359  (1867)    507 

Austin  v.  Aldermen  of  Boston,  7  Wall.  604   (1868)    507 

Averill  v.  Boston,  193  Mass.  488  (1907)   668 

Ayer  v.  Mayor  &  Aldermen  of  Somerville,  143  Mass.  585  (1887)   710 

Ayer  etc.  Tie  Company  v.  Kentucky,  202  U.  S.  409  (1906)   72 

Ayers  v.  Hatch,  175  Mass.  489  (1900)   154 

Babbitt  v.  Savoy,  3  Cush.  530  (1849)    109 

Babcock  v.  Leopold  Morse  Home,  225  Mass.  418  (1917)    201 

Babcock  v.  Slater,  212  Mass.  434  (1912)   180,  222,  224,  225 

Bacon  v.  Illinois,  227  U.  S.  504  (1913)    44 

Bailey  v.  Maguire,  22  Wall.  215  (1874)  27,  28 

Baker  v.  Allen,  21  Pick.  382  (1838) 315,  316 

Baker  v.  Boston,  12  Pick.  184  (1835)   401 

Baker  v.  Boston  Elevated  Ry.  Co.,  183  Mass.  178  (1903)  122,  123,  673,  674 

Baker  v.  Horan,  227  Mass.  415  (1917)    234 

Balch  v.  Essex  County  Commissioners,  103  Mass.  106  (1869)    103 

Balch  v.  Shaw,  174  Mass.  144  (1899)  620 

Baldwin  v.  Wilbraham,  140  Mass.  459  (1886)  150 

Ballard  v.  Hunter,  204  U.  S.  241  (1907)   31,  59,  61 


Table  of  Cases  xxiii 

[Citations  are  to  Pages] 

Baltic  Mining  Co.  v.  Commonwealth,  207  Mass.  381  (1911)  . .     40,  41,  42,  98,  562 

Baltic  Mining  Co.  v.  Massachusetts,  231  U.  S.  68  (1913)  41,  42,  563 

Baltimore  Shipbuilding  etc.  Co.  v.  Baltimore,  195  U.  S.  375  (1904)  47,  67 

Bancroft  v.  Boston,  115  Mass.  377  (1874)   673,  679 

Bancroft  v.  Cambridge,  126   Mass.  438   (1879)    730 

Bancroft  v.  Lynnfield,  18  Pick.  566  (1836)    109 

Bangs  v.  Brewster,  111  Mass.  382  (1873)   224 

Bank  v.  Supervisors,  7  Wall.  26  (1868)   48 

Bank  of  California  v.  Richardson,  248  U.  S.  476  (1919)  507,  510 

Bank  of  Commerce  v.  New  York,  2  Black.  620  (1862)  48 

Bank  of  Commerce  v.  Tennessee,  161  U.  S.  134  (1896)  57 

Bank  Tax  Case,  2  Wall.  200  (1864)    48 

Banks  v.  The  Mayor,  7  Wall.  16  (1868)  48 

Barker  v.  Mackay,  168  Mass.  76   (1897)    383,384,385,386 

Barker  v.  Mackay,  175  Mass.  485  (1900)   377 

Barker  v.  Watertown,  137  Mass.  227  (1884)  , 248 

Barnard  v.  Graves,  13  Met.  85  (1847)    281,  282,  336,  337,  397,  398 

Barnes  v.  Boardman,  149  Mass.  106  (1889)  347,  350 

Barnstable  Savings  Bank  v.  Boston,  127  Mass.  254  (1879)  ....     683,  684,  696,  711 

Barrett  v .  Cambridge,  10  Allen  48  (1865)   119,  407,  408 

Barron  v.  Boston,  187  Mass.  168  (1905)  222,  225,  242 

Barry  v.  Lancy,  179  Mass.  112  (1901)   68,  378,  384 

Bartlett  v.  Boston,  182  Mass.  460  (1903)   668 

Bassett  v.  Porter,  4  Cush.  487  (1849)  316 

Bates  v.  Boston,  5  Cush.  93  (1849)  403 

Bates  v.  Sharon,  175  Mass.  293  (1900)    199,  229,  403 

Batt  v.  Treasurer  &  Receiver  General,  209  Mass.  319  (1911)  620,  621 

Bauman  v.  Ross,  167  U.  S.  548  (1897)   127,  128 

Baxter  v.  Treasurer  &  Receiver  General,  209  Mass.  459  (1911)   614 

Beals  v.  Brookline,  174  Mass.  1  (1899)   694,  695 

Beals  v.  James,  173  Mass.  591  (1899)    122,  687;  690,  731 

Beard  v.  Seavey,  191  Mass.  503  (1906)  341,  394 

Beeson  v.  Johns,  124  U.  S.  56  (1888)    30 

Belgrade  v.  Sidney,  15  Mass.  523  (1819)   151 

Bell  v.  Newton,  183  Mass.  481  (1903)   668 

Bellows  Falls  Power  Co.  v.  Commonwealth,  222   Mass.  51    (1915) 

31,  56,  73,  74,  75,  76,  541,  542 

Bellows  Falls  Power  Co.  v.  Massachusetts,  245  U.  S.  630  (1917)    31 

Bell's  Gap  Railroad  v.  Pennsylvania,  134  U.  S.  232  (1890)   ....     53,  59,  61,  64,  92 

Bemis  v.  Aldermen  of  Boston,  14  Allen  366  (1867)    56,  71,  189,  249 

Bemis  v.  Caldwell,  143  Mass.  299  (1887)   272,  276,  349,  405 

Bennett  v.  Hunter,  9  Wall.  326  (1869)   64 

Bennett  v.  Wellesley,  189  Mass.  308  (1905)   705 

Benson  v.  Monroe,  7  Cush.  125  (1851)  ?. . . .     406 

Bent  v.  Hubbardston,  138  Mass.  99  (1884)  345 

Benton  v.  Brookline,  151  Mass.  250  (1890)  673,  674,  679 

Berlin  v.  Bolton,  10.  Met.  115  (1845) 252 

Berryman  v.  Whitman  College,  222  U.  S.  334  (1912)   29 

Bethlehem  Motors  Corp.  v.  Flynt,  U.  S.  (1921)    43 

Bigelow  v.  Boston,  120  Mass.  326  (1876)   694 

Bigelow  v.  Boston,  123  Mass.  50  (1877) 118,  680 

Billings  v.  Illinois,  188  U.  S.  97  (1903)  608 

Billings  v.  United  States,  232  U.  S.  261  (1914)  14 

Bi-Metallic  Invest.  Co.  v.  State  Board  of  Equalization,  239  U.  S.  441  (1915)        63 

Biscoe   v.  Tax  Commissioner,  236  Mass.  201    (1920)    50,433,454 

Blackburn  v.  Walpole,  9  Pick.  97  (1829)   282 


xxiv  Taxation  in  Massachusetts 

[Citations  are  to  Pages] 

Blackie  v.  Hudson,  117  Mass.  181  (1875)   682,  746 

Blackstone  v.  Miller,   188  U.  S.   189   (1903)    56,  77,  81,  82,  83,  84 

Blackstone  v.  Taft,  4  Gray  250  (1855)   159,  328 

Blackstone  Manufacturing  Co.  v.  Blackstone,  13  Gray  488  (1859)    ...     208,  561 
Blackstone    Mfg.    Co.    v.    Blackstone,    200    Mass.    82    (1908)     70,  191,  268,  290 

Blackstone  Manufacturing  Co.  v.  Blackstone,  211  Mass.  14  (1912)   70,  191 

Blake  v.  Baker,  115  Mass.  188  (1874)   119,  698,  699,  703 

Bliss  v.  Bliss,  221  Mass.  201   (1915)    . . . .' 75,  82,  83,  617,  627 

Blossom  v.  Cannon,  14  Mass.  177  (1817)   272,  349,  377 

Board  of  Education  v.  Illinois,  203  U.  S.  553  (1906)   620 

Board  of  Liquidation  v.  McComb,  92  U.  S.  531   (1875)    15 

Boise  etc.  Water  Co.  v.  Boise  City,  230  U.  S.  84  (1913)  28 

Bonaparte  v.  Tax  Court,  104  U.  S.  592  (1881)   31,  74,  75 

Boott  Cotton  Mills  v.  Lowell,  159  Mass.  383  (1893)   296,  300,  301,  302 

Borden  v.  Brockton,  208  Mass.  348  (1911)    721 

Borden  v.  Treasurer  &  Receiver  General,  221  Mass.  212  (1915)    627 

Borland  v.  Boston,  132  Mass.  89  (1882)   222,  223,  407 

Boston,  Petitioner,  221  Mass.  468  (1915)   115 

Boston  v.  B.  &  A.  R.  R.  Co.,  170  Mass.  95  (1898)  118,  125,  218,  675,  676,  685,  724 

Boston  v.  Chelsea,  212  Mass.  127  (1912)    16 

Boston  v.  Dedham,  4  Met.   178   (1842)    252 

Boston  v.  Schaffer,  9  Pick.  415  (1830)   10 

Boston  v.  Shaw,  1  Met.  130  (1840)    5,  126,  685,  686,  709,  711 

Boston  v.  Treasurer  &  Receiver  General,  237  Mass.  403  (1921)  105,  115 

Boston  v.  Turner,  201  Mass.  190  (1909)   11,  321,  322,  323,  343,  345,  346 

Boston  v.  Union  Freight  Railroad  Co.,  181  Mass.  205  (1902) 589 

Boston  Asylum  v.  Street  Com.  of  Boston,  180  Mass.  485   (1902)     119,  217,  676 

Boston  Elevated  Ry.  Co.  v.  Commonwealth,  199  Mass.  96  (1908)    589 

Boston  Fish  Market  Corporation  v.  Boston,  224  Mass.  31  (1916)   197,  234 

Boston  Investment  Co.  v.  Boston,  158  Mass.  461  (1893) 189,  208,  226,  561 

Boston  Loan  Co.  v.  Boston,  137  Mass.  332   (1884)    240,  251,  561 

Boston,  Loan  Co.  v.  Commonwealth,  224  Mass.  181  (1916)   251 

Boston  Lodge  of  Elks  v.  Boston,  217  Mass.  176  (1914)   19,  194,  199 

Boston  Manufacturing  Co.  v.  Commonwealth,  144  Mass.  598  (1887)  ....     593,  597 

Boston  Manufacturing  Co.  v.  Newton,  22  Pick.  22  (1839)  191,  581 

Boston  Molasses  Co.  v.  Commonwealth,  193  Mass.  387  (1907)  ....     197,  233,  235 

Boston  Railroad  Holding  Co.  v.  Commonwealth,  215  Mass.  493  (1913)  541 

Boston  Rubber  Shoe  Co.  v.  Maiden,  216  Mass.  508  (1914)  260,  291,  350 

Boston  Seamen's  Friend  Soc.  v.  Boston,  116  Mass.  181  (1874)     119,  675,  679,  695 

Boston  Water  Power  Co.  v.  Boston,  9  Met.  199  (1845)   403,  531,  581 

Boston  Water  Power  Co.  v.  Boston,  194  Mass.  571   (1907) 668 

Boston  Water  Power  Co.  v.  Boston  &  Worcester  R.  R.  Co.,  23  Pick.  360 

(1839)    103 

Boston  &' Albany  R.  R.  Co.  v.  Commonwealth,  157  Mass.  69  (1892)   . .     536,  598 

Boston  &  Lowell  R.  R.  Co.  v.  Commonwealth,  100  Mass.  399  (1868) 537 

Boston  &  Maine  Railroad  v.  Cambridge.  8  Cush.  237  (1851) 218,  740 

Boston  &  Sandwich  Glass  Co.  v.  Boston,  4  Met.  181  (1842)       188,  406,  530,  531,  581 

Bothwell  v.  Bingham  County,  237  U.  S.  642  (1915) 47 

Bourne  v.  Boston,  2  Grav  494  (1854) 225-  404 

Bowditch  v.  Chickering,  139  Mass.  283  (1885) 2f 

Bowditch  v.  Superintendent  of  Streets,  168  Mass.  239  (1897)    ....     686,  687,  691 

Bowman  v.  Chicago  etc.  R.  R.  Co.,  125  U.  S.  488  (1887)   22 

Bowman  v.  Continental  Oil  Co.,  U.S.  (1921)   35 

Boyd  v.  United  States,  116  U.  S.  616  (1886)    63,  592 

Boylston  Market  Association  v.  Boston,  113  Mass.  528   (1873)    ..     118,  668,  691 
Brackett  v.  Commonwealth,  223  Mass.  119(1916)  553 


Table  of  Cases  xxv 

[Citations  are  to  Pages] 

Bradford   v.  Randall,  5  Pick.  495    (1827) 281 

Bradford  'v.  Storey,  189  Mass.  104  (1905)    635,  655,  656 

Bradley  v.  Illinois,  4  Wall.  459  (1866)   48 

Bradley  v.  Richmond,  227  U.  S.  477  (1913)   6,  7,  17 

Bradshaw  v.  Crosby,  151  Mass.  237  (1890)    743 

Branson  v.  Bush,  251  U.  S.  182  (1919)    125 

Brayton  v.  Fall  River,  124  Mass.  95  (1878)   114,  117 

Breed  v.  Lynn,   126  Mass.  290   (1879)    694 

Bremer  v.  Williams,  210  Mass.  256  (1911)   374 

Brennan  v.  Titusville,  153  U.  S.  297  (1894)   35,  39 

Brewer  v.  New  Gloucester,  14  Mass.  216   (1817)    '. 410 

Brewer  v.  Springfield,  97  Mass.  152  (1867)    409,  687,  709 

Bridge  v.  Bridge,  146  Mass.  373  (1888)    236 

Briggs  v.  Rochester,  16  Gray  337  (1860)   223 

Briggs  v.  Whitney,   159   Mass.  97   (1893)    123 

Brimmer  v.  Rebman,  138  U.  S.  78   (1891)    34 

Bristol  v.  Washington  County,  177  U.  S.  133  (1900)  11,  74,  76,  86 

Brockton  v.  Plymouth  County  Commissioners,  183  Mass.  42  (1903) 297 

Brooks  v.  West  Springfield,  193  Mass.  190  (1906)   56,  193,  231.  441 

Brown  v.  Houston,  114  U.  S.  622  (1885)    21,  43 

Brown  v.  Mayor  and  Aldermen  of  Fitchburg,  128  Mass.  282  (1880) 710 

Brown  v.  Maryland,  12  Wheat.  419  (1827)   21,  22,  35,  43 

Browne  v.  Boston,  166  Mass.  229  (1896) 722 

Browne   v.  Turner,   176   Mass.  9   (1900)    105,114 

Brushaber  v.  Union  Pacific  R.  R.  Co.,  240  U.  S.  1  (1916)   14,  64 

Buck  v.  Beach,  206  U.  S.  392  (1908)    71,  74 

Buckley  v.  Williamstown,  3  Gray  493  (1855) 223 

Bullen  v.  Wisconsin,  240  U.  S.  625  (1916)    78,  81 

Bumstead  -v.   Cook,    169    Mass.   410    (1897)    685,747 

Burnham  v.  Treasurer  &  Receiver  General,  212  Mass.  165  (1912)  607,  622 

Burr  v.  Boston,  208  Mass.  537  (1911)    218 

Burr  v.  Wilcox,  13  Allen  269  (1866)    308,  310 

Burrage  v.  Boston,  198  Mass.  580  (1908)    668 

Burtis  v.  Burtis,   161   Mass.  508   (1894)    223 

Butler  v.  Perry,  240  U.  S.  328  (1916)    10 

Butler  v.  Stark,  139  Mass.  19  (1885)    228 

Butler  v.  Worcester,  112  Mass.  541  (1873)    122,  126,  128,  687,  689,  714 

Cabot  v.  Boston,   12   Cush.  52    (1853)    223 

Cahen  v.  Brewster,  203  U.  S.  543   (1906)    607 

Caldwell  v.  North  Carolina,  187  U.  S.  622   (1902)    35,  39 

California  v.  Central  Pacific  R.  R.  Co.,  127  U.  S.  1  (1888)   51 

Callahan  v.  Boston,   175  Mass.  201    (1901)    108 

Callahan  v.  Woodbridge,  171  Mass.  595   (1898) 

76,  80,  81,  608,  610,  616,  617,  619,  637,  655 

Cambridge  v.  Middlesex  County  Commissioners,  114  Mass.  337  (1874)   201 

Cambridge  v.  Munroe,  126  Mass.  496  (1879)    129,  730 

Campbell  v.  California,  200  U.  S.  87  (1906)    608 

Campbell  v.  Haven,  211  Mass.  121  (1912)   746 

Cannon  v.  New  Orleans,  20  Wall.  580  (1874)   23 

Capen  v.  Glover,  4  Mass.  305  (1808)  216 

Carleton  v.  Ashburnham,  102  Mass.  348  (1869)    245,286,407 

Carlton  v.  Salem,  103  Mass.  141    (1869)    148,  150 

Carnes  v.  Hersey,   117   Mass.  269   (1875)    234 

Carnoe  v.  Freetown,  9  Gray  357    (1857)    223 

Carpenter  v.  Pennsylvania,  17  How.  456   (1848)    78 


xxvi  Taxation  in  Massachusetts 

[Citations  are  to  Pages] 

Carr  v.  Dooley,  119  Mass.  294  (1876)    682,  746 

Carroll   v.  Safford,  3  How.  441    (1844)    47 

Carson  v.  Sewerage  Commissioners  of  Brockton,  175  Mass.  242   (1900) 

5,  61,  122,  125,  126,  128,  129,  714,  717 
Carson  v.  Sewerage  Com.  of  Brockton,  182  U.  S.  398  (1901)    ..     5,  61,  122,  717 

Carstairs  v.  Cochran,  193  U.  S.  10   (1904)    '.     48,  64 

Carter  v.  Cambridge  &  Brookline  Bridge  Prop.,  104  Mass'.  236  (1870)  114    117 

Carter  v.  Peak,  138  Mass.  439  (1885)    '743 

Castillo  v.  McConnico,  168  U.  S.  674  (1898) 59,  61 

Central  of  Geoigia  R.  R.  Co.  v.  Wright,  207  U.  S.  127  (1907) 6o|  63 

Central  Pacific  R.  R.  Co.  v.  Nevada,  162  U.  S.  512  (1896) '  47 

Central  R.  R.  etc.  Co.  v.  Georgia,  92  U.  S.  665   (1875) 28 

Central  Trust  Co.  v.  Minnesota,  174  U.  S.  803  (1899) 67 

Chadwick  v.  Cambridge,  230  Mass.  580  (1918)    351,  374   388 

Chanler  v.  Kelsey,  205  U.  S.  466  (1907)   '....'  607 

Chapel  of  the  Good  Shepherd  v.  Boston,  120  Mass.  212  (1876)    199,  403 

Chapin  v.  Worcester,  124  Mass.  468   (1878)    128,  687'  689 

Charland  v.  Home  for  Aged  Women,  204  Mass.  563  ((1910)   347^  359,  744 

Charlesbank  Homes  v.  Boston,  218  Mass.  14  (1914)  199 

Charlestown  v.  Middlesex  County  Com.,  1  Allen  199  (1861)  260,  262,  290,  740 
Charlestown  v.  Middlesex  County  Com.,  101  Mass.  87  (1869)  ..  289,  291,  296 
Charlestown  v.  Middlesex  County  Commissioners,  109  Mass.  270  (1872)  290,  301 

Charlestown  v.  Stone,   15  Gray  40   (1860)    685,  722 

Charlotte  etc.  R.  R.  Co.  v.  Gibbes,  142  U.  S.  386  (1872)    9,  53 

Chase  v.  Aldermen  of  Springfield,  119  Mass.  556  (1876)  . .     124,  677,  678,  687,  688 

Chase  v.  Boston,  180  Mass.  458  (1902)   193,  251,  446 

Chase  v.  Boston,  193  Mass.  522  (1907)   251,  265,  292,  294 

Chase  v.  Merrimack  Bank,  19  Pick.  564  ( 1837)   410 

Chase  v.  Worcester,  108  Mass.  60  (1871)   * 707 

Cheever  v.  Merritt,  5  Allen  563  (1863)    322,  332,  341,  397,  398 

Chelsea  v.  Treas.  &  Rec.  Gen.,  237  Mass.  422  (1921)    ..     105,  115,  170,  217,  258 

Chenery  v.  Waltham,  8  Cush.  327  (1851)    225 

Cheney  v.  Beverly,   188   Mass.  81    (1905)    126,709,715 

Cheney  v.  Dover,  205  Mass.  501    (1910)    ". 298,  306 

Cheney  Bros.  Co.  v.  Massachusetts,  246  U.  S.  147  (1918)       36,  39,  41,  42,  43,  563 

Chesapeake  etc.  R.  R.  Co.  v.  Miller,  114  U.  S.  176  (1884)   ....: 28,  29 

Chesapeake  etc.  R.  R.  Co.  v.  Virginia,  94  U.  S.  718  (1876)    28 

Cheshire  v.  Berkshire  County  Commissioners,  118  Mass.  386  (1875)  . .     89,  90,  92 

Cheshire  v.  Howland,  13  Gray  321    (1859)    286,  327 

Chicago  etc.  R.  R.  Co.  v.  Babcock,  204  U.  S.  585  (1907) 70,  71 

Chicago  etc.  R.  R.  Co.  v.  Guffey,  120  U.  S  569  (1886)   28 

Chicago  etc.  R.  R.  Co.  v.  Minnesota,  216  U.  S.  234  (1910)  30 

Chicopee  v.  Hampden  County  Commissioners,  16  Gray  38  (1860)   ....     268,  294 

Chicopee  v.  Whately,  6  Allen  508  (1863)    223 

Child  v.  Boston,  4  Allen  41   (1862)    5 

Childs  v.  New  Haven  &  Northampton  Co,  133  Mass.  253  (1882) 673 

Choate  v.  Trapp,  224  U.  S.  665  (1912)    26,  27 

Choctaw  etc.  R.  R.  Co.  v.  Harrison,  235  U.  S.  292  (1914)   12,  47 

Choctaw  etc.  R.  R.  Co.  v.  Mackey,  U.  S.  (1921)    51 

Christ  Church  v.  Philadelphia,  24  How.  300   (1860)    27 

Cincinnati  etc.  Packet  Co.  v.  Catlettsburg,  105  U.  S.  559  (1881)    34 

Citizens  National  Bank  v.  Kentucky,  217  U.  S.  443  (1910)    65,  68.  512 

Citizens  Savings  Bank  v.  Owensboro,  173  U.  S.  636  (1899)   29 

Citizens  Telephone  Co.  v.  Fuller,  229  U.  S.  322  (1913)  53 

City  National  Bank  v.  Charles  Baker  Co.,  180  Mass.  40  (1901)  18,  189,  239,  322 
Clark   v.  Lancy,   178   Mass.  460    (1901)    378.  384,385 


Table  of  Cases  xxvii 

[Citations  are  to  Pages] 

Clark  v.  Treasurer  &  Receiver  General,  218  Mass.  292  (1914)       81,  83,  617,  623 

Clark  v.  Worcester,  167  Mass.  81   (1896)    409,  687 

Clarke  v.  Treasurer  &  Receiver  General,  226  Mass.  301  (1917) 607,  614 

Clement  National  Bank  v.  Vermont,  231  U.  S.  120  (1913)    62,  511 

Cleveland  etc.  R.  R.  Co.  v.  Backus,  154  U.  S.  443  (1894)   70 

Cleveland  Trust  Co.  v.  Lauder,  184  U.  S.  Ill  (1902)   48 

Cloutman  v.  Concord,  163  Mass.  444   (1895)    249 

Coburn  v.  Litchfield,  132  Mass.  449  (1882)    743 

Cochran  v.  Guild,  106  Mass.  29  (1870)   351,  743 

Cochrane  v.  Boston,  4  Allen  177  (1862)   223 

Codman  v.  Crocker,  203  Mass.  146  (1909)   148 

Codman  v.  Hall,  9  Allen  335  (1864)  234 

Codman  v.  Johnson,  104  Mass.  491   (1870)    118,  119,  698 

Cody   v.  Spear,  214  Mass.  241    (1913) 245,  265 

Coe  v.  Errol,  116  U.  S.  524  (1886)    21,  22,  44,  56 

Coffin  v.  Artesian  Water  Co.,  193  Mass.  274  (1906)   208,  242,  247,  561 

Colburn  v.  Litchfield,  132  Mass.  449    (1882) 703,  746 

Cole  v.  Cheshire,  1  Gray  441   (1854)    \  . .     224,  225 

Cole  v.  LaGrange,  113  TJ.  S.  1  (1884)    102 

Colerain  v.  Bell,  9  Met.  499  (1845) 327,  328,  396 

Collector  of  Boston  v.  Mount  Auburn  Cemetery,  217  Mass.  286  (1914)      226,  531 
Coll.  of  Boston  v.  Rising  Sun  St.  Light.  Co.,  229  Mass.  494   (1918)       217,  240 

Collector  of  Lakeville  v.  Bay  State  St.  Ry.  Co.,  234  Mass.  336  (1920)  588 

Collector  of  Norton  v.  Oldfield,  219  Mass.  374  (1914)    218 

Collector  of  West  Bridgewater  v.  Dunster,  231  Mass.  291  (1918)   291,  344 

Collins  v.  Greenfield,  172  Mass.  78  (1898)   5 

Collins  v.  Mayor  and  Aldermen  of  Holyoke,  146  Mass.  298  (1888) 

129,  688,  690,  691,  710,  711 

Colman  v.  Anderson,  10  Mass.  105   (1813)    159,  347,  348,  354 

Colton  v.  Longmeadow,  12  Allen  598  (1866)    223 

Columbus  Southern  R.  R.  Co.  v.  Wright,  151  U.  S.  470  (1894)   70 

Commercial  National  Bank  v.  Chambers,  182  U.  S.  556  (1901)   56,  511 

Commissioner  of  Public  Works  v.  Justice  of  Dorchester  District,  228  Mass. 

12    (1917)    497 

Commonwealth  v.  Barnstable  Savings  Bank,  126  Mass.  526  (1879)    98,  520 

Commonwealth  v.  Berkshire  Life  Insurance  Co.,  98  Mass.  25  (1867) 526 

Commonwealth  v.  Cary  Improvement  Co.,  98  Mass.  19  (1867)   ..     533,  537,  592 

Commonwealth  v.  Coombs,  2  Mass.  489  (1807)    673 

Commonwealth  v.  Hamilton  Manufacturing  Co.,  12  Allen  298  (1866) 

12,  14,  89,  90,  98,  532,  538 

Commonwealth  v.  Hefron,  102  Mass.  148  (1869)    273 

Commonwealth  v.  Holbrook,  10  Allen  200  (1865)  8 

Commonwealth  v.  Lancaster  Savings  Bank,  123  Mass.  493  (1878)   98,  520 

Commonwealth  v.  Lowell  Gas  Light  Co.,  12  Allen  75  (1866) 

14,  98,  217,  242,  247,  532,  533,  537 
Commonwealth  v.  New  England  Slate  &  Tile  Co.,  13  Allen  391   (1866) 

13,  38,  55,  313,  532,  538,  569,  584 

Commonwealth  v.  Newburyport,  103  Mass.  129   (1864)    115 

Commonwealth   v.  People's   Five  Cents  Savings  Bank,  5  Allen  428   (1862) 

4,  7,  12,  14,  56,  89,  94,  98,  516 

Commonwealth  v.  Phoenix  Bank,  11  Met.  129  (1846)  396 

Commonwealth  v.  Plaisted,  148  Mass.  375  (1889)   18,  115 

Commonwealth  v.  Provident  Institution  for  Savings,  12  Allen  312  (1866) 

14,  89,  98,  100,  517 

Commonwealth  v.  Quinn.  222  Mass.  505  (1916)    273 

Commonwealth  v.  Segee,  218  Mass.  501  (1914)   273,  663,  743 


xxviii  Taxation  in  Massachusetts 

[Citations  are  to  Pages] 

Commonwealth  v.  Sessions  of  Norfolk,  5  Mass.  435  (1809)    673 

Commonwealth  v.  Slocum,  230  Mass.  180   (1918)    9 

Commonwealth  v.  Stodder,  2  Cush.  562   (1848)    9 

Commonwealth  v.  Thorniley,  8  Allen  445  (1863)   8 

Commonwealth  v.  United  States  Worsted  Co.,  220  Mass.  183  (1915)    739 

Commonwealth  v.  Walker,  4  Mass.  556  (1808)   223 

Commonwealth  v.  Wentworth,  145  Mass.  50  (1887)   153 

Cone  v.  Forest,  126  Mass.  97  (1879)    256.  309,  312,  337,  349,  397,  398 

Conkey  v.  Dickinson,  13  Met.  51  (1847)   245 

Connecticut  Mutual  Life  Insurance  Co.  v.  Commonwealth,  133  Mass.  161 

(1882)     89,  90,  98,  99,  523 

Connecticut  Valley  St.  Ry.  Co.  v.  Northampton,  213  Mass.  54  (1912)     217,  248 

Conners  v.  Lowell,  209  Mass.  Ill   (1911)   228,  331,  353,  358,  359,  360,  363 

Consolidated  Rendering  Co.  v.  Vermont,  207  U.  S.  541  (1908)   592 

Converse  v.  Jennings,  13  Gray  77  (1859) 329 

Cook  v.  Boston,  9  Allen  393   (1864)    406 

Cook  v.  Leland,  5  Pick.  236   (1827) 243,  246 

Cook  v.  Marshall  County,  196  U.  S.  261  (1905)   10 

Cook  v.  Pennsylvania,  97  U.  S.  573  (1878)    22,  43 

Cooke  v.  Scituate,  201  Mass.  107  (1909)   252 

Cooley  v.  Board  of  Wardens,  12  How.  313  (1851)    22,  23 

Coolidge  v.  Brookline,  114  Mass.  592   (1874)    112 

Coomes  v.  Burt,  22  Pick.  422  (1839)    730 

Copeland  v.  Huntington,  99  Mass.  425  (1868)    149 

Copeland  v.  Springfield,  166  Mass.  498  (1896)    721,  723 

Copper  Queen  Consolidated  Mining  Co.  v.  Arizona,  206  U.  S.  474  (1907) ....     60 
Corcoran  v.  Aldermen  of  Cambridge,  199  Mass.  5  (1908) 

122,  126,  127,  128,  146,  690 

Corcoran  v.  Boston,  185  Mass.  325  (1904)   197 

Corcoran  v.  Boston,  193  Mass.  586   (1907)    197 

Corfield  v.  Coryell,  4  Wash.  371    (1823) 38 

Cornell  v.  Coyne,  192  U.  S.  418  (1904)    14 

Corry  v.  Baltimore,  196  U.  S.  466   (1905)    61,  64,  75,  76,  86 

Cotting  v.  Commonwealth,  205  Mass.  523  (1910)    746,  747 

Cotton  v.  Boston,  161  Mass.  8  (1894)    78,  250 

Coughlin  v.  Gray,  131  Mass.  56   (1881)    350,  357,  364,  370 

Coulter  v.  Louisville  etc.  R.  R.  Co.,  196  U.  S.  599  (1905)    53,  54 

Covington  v.  Covington  First  National  Bank,  198  U.  S.  100  (1905)     74,  509,  512 

Covington  v.  Kentucky,  173  U.  S.  231   (1898)    28,  29,  115 

Cox  v.  Segee,  206  Mass.  380  (1910)   252 

Crandall  v.  Nevada,  6  Wall.  35  (1867)    21,  49 

Crandell  v.  Taunton,  110  Mass.  421    (1872)    686,  694,  696 

Crapo  v.  Stetson,  8  Met.  106   (1844)    11,  342 

Cream  of  Wheat  Co.  v.  Grand  Forks,  253  U.  S.  325  (1920)  37,  56,  73,  74 

Crenshaw  v.  Arkansas,  227  U.  S.  389  (1913)   39 

Crew  Levick  Co.  v.  Pennsylvania,  245  U.  S.  292  (1917) 4,  37,  45 

Crocker  v.  Maiden,  229  Mass.  313  (1918) 79 

Crocker  v.  Shaw,  174  Mass.  266   (1899)    607,  615 

Crowell  v.  Goodwin,  3  Allen  535  (1862)    355,  377 

Crutcher  v.  Kentucky,  141  U.  S.  47  (1891)    35 

Cudahy  Packing  Co.  v.  Minnesota,  246  U.  S.  450  (1918)    37,  45 

Cummings  v.  Merchants'  National  Bank,  101  U.  S.  153  (1879)    55 

Cummins  v.  Christie,  179  Mass.  74   (1901)    356 

Cunningham  v.  Boston,  15  Gray  468  (1860)   406 

Cunningham  v.  Munroe,  13  Grav  471   (1860)    399 

Curran  v.  Holliston,  130  Mass.  272  (1881)    , 109 


Table  of  Cases  xxix 

[Citations  are  to  Pages] 

Curtis  v.  Gay,  15  Gray  36   (1860)    374 

Curtis  v.  Pierce,   115  Mass.  186   (1874)    119,698,699 

Curtiss  v.  Sheffield,  213  Mass.  239  (1913)   229,  320,  322,  347,  349,  367,  386 

Cusick  v.  Brookline,  123  Mass.  91  (1877)    112 

Custy  v.  Lowell,  117  Mass.  78  (1875)    694 

D'Amico  v.  Boston.  176  Mass.  599  (1900)   5 

Dana  v.  Dana,  226  Mass.  297  (1917)    615 

Dana  v.  Treasurer  &  Receiver  General,  227  Mass.  562  (1917)       80,  81,  616,  617 

Dane  u.  Jackson,  U.  S.  (1921) 174 

Dane  v.  Treasurer  &  Receiver  General,  236  Mass.  280  (1920)    174,  411 

Dane  v.  Treasurer  &  Receiver  General,  237  Mass.  50  (1921)    114,  174,  411 

Danforth  v.  Williams,  9  Mass.  324  (1812)   283 

Dallinger  v.  Davis,  149  Mass.  62  (1889)    246,  345 

Darnell  v.  Indiana,  226  U.  S.  390   (1912)    76 

Darnell  v.  Memphis,  208  U.  S.  113  (1908)   43 

Da  Silva  v.  Turner,  166  Mass.  407  (1896)    375 

Davenport  National  Bank  v.  Davenport,  123  U.  S.  83  (1887)    509 

Davidson  v.  New  Orleans,  96  U.  S.  97  (1877)    60,  61,  62 

Davidson   u.  Stafford,  210  Mass.  145   (1911)    ..     363,  375,  376,  378,  379,  384,  412 

Davies  v.  Boston,  190  Mass.  194   (1906)    5,  105 

Davis  v.  Allen,  224  Mass.  551   (1916)    350 

Davis  v.  Bay  State  League,  158  Mass.  434   (1893)    372 

Davis  v.  Bean,  114  Mass.  358  (1874)   351,  743 

Davis  v.  Bean,  114  Mass.  360  (1874)    743 

Davis   v.  Boston,  129   Mass.  377    (1880)    230,308,309,351,385 

Davis  v.  Macy,  124  Mass.  193   (1878)    344 

Davis   v.  Rockport,  213   Mass.  279    (1913)    103,  107 

Davis  v.  Treasurer  &  Receiver  General,  208  Mass.  343  (1911)    620 

Dawson  v.  Kentucky  Distilleries  etc.  Co.,  256  U.  S.  288  (1921)   12,  14 

Day  v.  Lawrence,  167  Mass.  371   (1897)    89,  93,  211 

Deane  v.  Hathaway,  136  Mass.  129  (1883) 58,  192,  308 

DeGanay  v.  Lederer,  250  U.  S.  376  (1919)    74 

Delaware  etc.  R.  R.  Co.  v.  Pennsylvania,  198  U.  S.  341  (1905)    37,  69,  72 

Delaware  Railroad  Tax,  18  Wall.  206    (1873)    28,  37,  44,  70 

Denham  v.  Bristol  County  Commissioners,  108  Mass.  202  (1871) 102,  708 

Derumple  v.  Clark,  Quincy  38  (1763)   233 

Desmond  v.  Babbitt,  117  Mass.  233  (1875)    .'.     227,  228 

Dewey  v.  Des  Moines,  173  U.  S.  193  (1899)    86,  685 

Dewey  v.  Donovan,   126  Mass.  335   (1879)    385 

Dexter  v.  Boston,  176  Mass.  247  (1900) 

125,  127,  405,  687,  689,  701,  709,  711,  714,  719 

Diamond  Match  Co.  v.  Ontonagon,  188  U.  S.  96  (1903)    44 

Dickinson  v.  Billings,  4  Gray  42  ( 1855) 316 

Dickinson  v.  Boston,  188  Mass.  595  (1905)   104 

Dickinson  v.  Brookline,  181  Mass.  195  (1902)    222 

Dickinson  v.  Fitchburg,  13  Gray  546  (1859) 673 

Dickinson  v.  Worcester,  138  Mass.  555   (1885)    125,  722 

Dillingham  v.  Snow,  5  Mass.  547  (1809)  216,  314 

Dingley  v.  Boston,  100  Mass.  544  (1868)    103,  730 

Doane  v.  Eldridge,   16   Gray  254    (1860) 327 

Dobbins  v.  Erie  County,  16  Pet.  435  (1842)    49 

Dodge  v.  Woolsey,  18  How.  331    (1855)    26,  29 

Dollar  Savings  Bank  v.  United  States,  19  Wall.  227   (1873) ll|  59 

Donelson  v.  Colerain,  4  Met.  430  (1842)    '397 

Dorgan  v.  Boston,  12  Allen  223   (1866)    89,  118,  119,  122,  669 


xxx  Taxation  in  Massachusetts 

[Citations  are  to  Pages] 

Dow  v.  Abbott,  197  Mass.  283  (1908)   631,  638,  641,  643,  644 

Dow  v.  First  Parish  in  Sudbury,  5  Met.  73  (1842)    224,  401 

Dow  v.  Wakefield,  103  Mass.  267  (1869)    114,  117 

Downer  v.  Boston,  7  Cush.  277  (1851)   122,  125,  709 

Downey  v.  Lancy,  178  Mass.  465  (1901)   359 

Dozier  v.  Alabama,  218  U.  S.  124  (1910)   36,  39 

Draper  v.  Hatfield,  124  Mass.  53  (1878)    223,  224,  225,  319 

Draper  v.  Mayor  of  Fall  River,  185  Mass.  142  (1904)    148,  722 

Driscoll  v.  Northbridge,  210  Mass.  151   (1911)    674,  694,  695,  715,  718 

Dudley  v.  Jamaica  Pond  Aqueduct  Co.,  100  Mass.  183  (1868)    242,  247 

Duffy  v.  Treasurer  &  Receiver  General,  234  Mass.  42  (1919) 

17,  18,  91,  113,  114,  174,  411,  435 

Duggan  v.  Peabody,  187  Mass.  349  (1905)   5 

Dunbar  v.  Aldermen  of  Boston,  101  Mass.  317  ( 1869)    190 

Dunbar  v.  Boston,  112  Mass.  75  (1873)    335,  398,  406,  408 

Dunham  v.  Lowell,  200  Mass.  468   (1909)    227,  285,  321,  343,  347,  405 

Dunlap  v.  Bullard,  131  Mass.  161  (1881)  234 

Dunn  v.  Mayor  of  Taunton,  200  Mass.  252  ( 1908)    710 

Dunn  v.  Trefry,  260  Fed.  Rep.  147  (1919)   499 

Dunnell  Manufacturing  Co.  v.  Pawtucket,  7  Gray  277  (1856)   ....     228,  290,  530 

Durant  v.  Eaton,  98  Mass.  469  (1868)   316 

Duus  v.  Brown,  245  U.  S.  176  (1917)    32 

Duxbury  v.  Plymouth  County  Commissioners,  172  Mass.  383  (1899)   248 

Dwight  v.  Mayor  &  Aldermen  of  Boston,  12  Allen  316  (1866) 

55,  56,  73,  74,  76,  562 

Dwight  v.  Springfield  Centre  Fire  District,  11  Met.  374  (1846)   163,  562 

Dyer  v.  Melrose,  197  Mass.  99  (1908)   49 

Dyer  v.  Melrose,  215  U.  S.  594   (1909) 49 

Eames  v.  Johnson,  4  Allen  382  (1862) 316,  397 

Earle  v.  Commonwealth,  180  Mass.  579  (1902)    107,  108 

East  Saginaw  Salt  Mfg.  Co.  v.  East  Saginaw,  13  Wall.  373  (1871)  27 

East  Tennessee  etc.  R.  R.  Co.  v.  Hamblen  County,  102  U.  S.  273  (1880)  ..       28 
Eaton,  Crane  &  Pike  Co.  v.  Commonwealth,  237  Mass.  523   (1921) 

4,  14,  18,  436,  758 

Edwards  v.  Karzey,  96  U.  S.  595  (1877)   25 

Egremont  v.  Benjamin,  125  Mass.  15  (1878)  327 

Eidman  v.  Martinez,  184  U.  S.  578  (1902)  78 

Eisner  v.  Macomber,  232  U.  S.  189  (1920)  435 

Elder  v.  Wood,  208  U.  S.  226  (1908)   47 

Eldridge  v.  Norfolk  County  Commissioners,  185  Mass.  186  (1904)   753 

Embree  v.  Kansas  City  Road  District,  240  U.  S.  242  (1916)  125 

Emerson  v.  Milton  Academy,  185  Mass.  414  (1904)  200 

Emert  v.  Missouri,  156  U.  S.  296  (1895)    35,  43 

Emery  v.  Emery,  218  Mass.  227  (1914)    222 

Emmons  v.  Shaw,  171  Mass.  410  (1898)   622 

Enfield  v.  Woods,  212  Mass.  547  (1912)    .' 273 

English  v.  Richardson,  224  U.  S.  680  (1912)    27 

Equitable  Life  Assurance  Society  v.  Pennsylvania,  238  U.  S.  143  (1915)    ...     84 
Equitable  Trust  Co.  v.  Kelsey,  209  Mass.  416  (1911)      227,  345,  369,  370,  371,  749 

Erie  R.  R.  Co.  v.  Pennsylvania,  21  Wall.  492  (1874)  27,  28 

Essex  v.  Brooks,  164  Mass.  79  (1895) 619,  645,  655 

Essex  Board  v.  Shinkle,  140  U.  S.  334  (1891)    115 

Essex  Co.  v.  Lawrence,  214  Mass.  79  (1913)    . .     191,  218,  268.  269,  292,  297,  582 
Evangelical  Baptist  etc.  Society  v.  Boston,  192  Mass.  412  (1906)   216 


Table  of  Cases  xxxi 

[Citations  are  to  Pages] 

Evangelical  Baptist  etc.  Society  v.  Boston,  204  Mass.  28  (1910)   194,  205 

Evansville  National  Bank  v.  Britton.  105  U.  S.  322  (1881)  509,  510 

Fairbanks  v.  Mayor  and  Aldermen   of   Fitchburg,   132   Mass.  42    (1882) 

124,  688,  690,  710 

Fallbrook  Irrigation  District  v.  Bradley,  164  U.  S.  112  (1896)    60 

Fall  River  v.  Bristol  County  Commissioners,  125  Mass.  597  (1878)     191,  208,  532 

Fargo  v.  Hart,  193  U.  S.  490   (1904)    71 

Farmers'  etc.  Insurance  Co.  v.  Dobbins,  189  U.  S.  301  (1903)  53 

Farmers'  etc.  Savings  Bank  v.  Minnesota,  232  U.  S.  516  (1914)   ........     47,  49 

Farmington  River  Water  Power  Co.  v.  Berkshire  Countv  Commissioners, 

112    Mass.   206    (1873) 191 

Farncomb  v.  Denver,  252  U.  S.  7  (1920)  128 

Farnsworth  v.  Boston,  121  Mass.  J73  (1876)   308,  683,  684,  711 

Farnum  v.  Buffum,  4  Cush.  260  (1849)   353,  354,  377 

Farr  Alpaca  Co.  v.  Commonwealth,  212  Mass.  156  (1912)  48,  542 

Farrington  v.  Tennessee,  95  U.  S.  679  (1877)  27,  57 

Faulkner  v.  Sisson,  183  Mass.  524  (1903) 148 

Faulkner  v.  Tax  Commissioner,  229  Mass.  120  (1918)   469 

Faxon  v.  Wallace,  98  Mass.  44  (1867)    * . . . .     376 

Faxon  v.  Wallace,  101  Mass.  444  (1869)  376 

Federal  Trust  Co.  v.  Bristol  County  St.  Ry.  Co.,  218  Mass.  367  (1914)   ...     357 

Feehan  v.  Tax  Commissioner,  237  Mass.  169  (1921)  222,  224,  436 

Felker  v.  Standard  Yarn  Co.,  148  Mass.  226  (1889)  11,  343 

Ficklen  v.  Shelby  County  Taxing  District,  145  U.  S.  21  (1892)  36 

Fidelity  etc.  Co.  v.  Pennsylvania,  240  U.  S.  319  (1916)   50 

Fidelity  etc.  Trust  Co.  v.  Louisville,  245  U.  S.  54  (1917)   ....     56,  73,  75,  77,  78 

Field  v.  Clark,  143  U.  S.  649  (1892)  16 

Field  v.  Hawley,  126  Mass.  327  (1879)   377 

Fifty  Associates  v.  Boston,  201  Mass.  585  (1909)  673 

Finlay  v.  Boston,  196  Mass.  267  (1907)  150,  410 

Firemen's  Fire  Ins.  Co.  v.  Commonwealth,  137  Mass.  80   (1884)     230,  540,  581 

First  Parish  in  Sherburne  v.  Fiske,  8  Cush.  264  (1851)  157,  317 

First  Universalist  Society  v.  Bradford,  185  Mass.  310   (1904)    205,  619 

Fisher  &  Co.,  Re,  148  Fed.  Rep.  907  (1906)   . . : 346 

Fisk  v.  Chester,  8  Gray.  506  (1857)   224,  225 

Fisk  v.  Springfield,  116  Mass.  88  (1874)   149 

Fiske  v.  Huntington,  179  Mass.  571   (1901)    110 

Fiske  v.  Needham,  11  Mass.  452  (1814)    401 

Flagg  v.  Flagg,  16  Gray  175  (1860)   103 

Flanders  v.  Cross,  10  Cush.  514  (1852)   190 

Flax  Pond  Water  Co.  v.  Lynn,  147  Mass.  31   (1888)    227,  229 

Flint  v.  Aldermen  of  Boston,  99  Mass.  141  (1868)   51,  510 

Flint  v.  Stone  Tracy  Co.,  220  U.  S.  107  (1911)  13,  14,  36,  58,  101,  605 

Flood  v.  Leahy,  183  Mass.  232    (1903)    112 

Florida  Central  etc.  R.  R.  Co.  v.  Reynolds,  183  U.  S.  471  (1902)  53,  54,  65 

Flynn,  Re,  134  Fed.  Rep.  145  (1905)    346 

Foley  v.  Haverhill,  144  Mass.  352   (1887) 687,  689,  691 

Foote  v.  Cotting,  195  Mass.  55,  63  (1907) 372,  374 

Foote  v.  Salem,  14  Allen  87  (1867)    107,  113 

Forbes  v.  Gracey,  94  U.  S.  762  (1876)  47 

Forest  River  Lead  Co.  v.  Salem,  165  Mass.  193  (1896) 409 

Forster  v.  Forster,  129  Mass.  559  (1880)   68,  354,  355 

Fort  Smith  Lumber  Co.  v.  Arkansas,  251  IT-  S.  532  (1920)   53 

Foster  v.  Boston,  215  Mass.  31  (1913)   249 

Foster  v.  Park  Commissioners,  131  Mass.  225  (1881)  688 


xxxii  Taxation  in  Massachusetts 

[Citations  are  to  Pages] 

Foster  v.  Park  Commissioners,  133  Mass.  321  (1882)  122,  676 

Foster  v.  Pryor,  189  U.  S.  325  (1903)   '    47 

Franklin  Square  House  v.  Boston,  188  Mass.  409  (1905)   199,  200 

Frederickson  v.  Louisiana,  23  How.  445  (1859)   32 

Freeland  v.  Hastings,  10  Allen  570  (1865)    ....     108,  109,  112,  113,  114,  149,  254 

Freeman  v.  Kenney,  15  Pick.  44  (1833)  315 

French  v.  Barber  Asphalt  Paving  Co.,  181  U.  S.  324  (1901)   125,  130 

French  v.  Jones,  191  Mass.  522  (1906)   247 

French  v.  Lowell,  117  Mass.  363  (1875)    673 

French  v.  Quincy,  3  Allen  9  (1861)   103,  107,  113 

Friend  v.  Gilbert,  108  Mass.  408   (1871)    109,  113 

Frost  v.  Belmont,  6  Allen  152  (1863)  112,  149,  150 

Frothingham  v.  Shaw,  175  Mass.  59  (1899)   75,  81,  616 

Fuller  v.  Day,  103  Mass.  481  (1870)   335,  337,  345 

Fuller  v.  Fuller,  228  Mass.  441   (1917) 331,  359 

Fuller  v.  Groton,  11  Gray  340  (1858)    109 

Fuller  v.  Melrose,  1  Allen  166  (1861)    149 

Fuller  v.  Somerville,  136  Mass.  556  (1884)   678 

Furman  v.  Nichol,  8  Wall.  44  (1868)  24 

Gage  v.  Currier,  4  Pick.  399  (1826)    315 

Galena  v.  Amy,  5  Wall.  705  (1866)   25 

Gallup  v.  Schmidt,  183  U.  S.  300  (1902)   60 

Galveston  etc.  Railway  Co.  v .  Texas,  210  U.  S.  217  (1908)  37,  45,  71 

Gannett  v.  Cambridge,  218  Mass.  60  (1914)    ' 306 

Garden  Cemetery  Corporation  v.  Baker,  218  Mass.  339   (1914) 

122,  145,  146,  207,  349,  356,  384,  386,  675,  676 

Gardiner  v.  Brookline,  181  Mass.  162  (1902)  222,  223,  225 

Gardiner  v.  Street  Commissioners,  188  Mass.  223  (1905)  691 

Gardiner  v.  Treasurer  &  Receiver  General,  225  Mass.  355  (1916)  ....     83,  616,  623 

Gardner  v.  Boston,  106  Mass.  549  (1871)   694,  701 

Garvey  v.  Revere,  187  Mass.  545  (1905)   673 

Gaskill  v.  Dudley,  6  Met.  546  (1843)  • 410 

General  Oil  Co.  v.  Crain,  209  U.  S.  211  (1908)  44 

George  v.  School  District  in  Mendon,  6  Met.  497  (1843)  154,  252,  406 

Gerry  v.  Stoneham,  1  Allen  319  (1861)   112,  147,  312 

Gibbs  v.  Hampden  County  Commissioners,  19  Pick.  298  (1837)  297,  410 

Gile  v.  Perkins,  207  Mass.  172   (1911)    252,  317 

Giozza  v.  Tiernan,  148  IT.  S.  662  (1893)   53 

Gladwin  v.  French,  112  Mass.  186  (1873)  385 

Glazier  v.  Everett,  224  Mass.  184  (1916)    363 

Gleason   v.  McKay,   134  Mass.  419   (1883) 89,90,97,99 

Gleason  v.  Wood,  224  U.  S.  679  (1912)  27 

Glidden  v.  Harrington,  189  U.  S.  258  (1903)   62,  64 

Gloucester  Ferry  Co.  v.  Pennsylvania,  114  U.  S.  196  (1885)   35,  38,  41 

Goddard  v.  Lowell,  179   Mass.  496   (1901)    148 

Goddard,  Petitioner,  16  Pick.  504   (1835)    130,  727,  730 

Godbold  v.  Chelsea,  111  Mass.  294   (1873)    672,  679 

Goldman  v.  Tax  Commissioner,  230  Mass.  554  (1918)  441,  458 

Goldsbury  v.  Warwick,  112  Mass.  384  (1873)    508 

Goldsmith  v.  Prendergast  Construction  Co.,  252  U.  S.  12  (1920)    125 

Goldsmith-Grant  Co.  v.  United  States,  254  U.  S.  505  (1921)    66 

Goodrich  v.  Edwards,  255  U.  S.  527  (1921)  435,  456 

Goodrich  v.  Lunenburg,  9  Gray  38  (1857)    147,  312 

Gordon  v.  Appeal  Tax  Court,  3  How.  133   (1845)    26,  27 

Gordon  v.  Sanderson,  165  Mass.  375  (1896)   210,  286,  302,  410 


Table  of  Cases  xxxiii 

[Citations  are  to  Pages] 

Gould  v.  Gould,  245  U.  S.  151   (1918)   18 

Grace  v.  Newton  Board  of  Health,  135  Mass.  490  (1883)       128,  687,  688,  730,  731 

Granby  v.  Amherst,  7  Mass.  1   (1810)    223,  239 

Grand  Lodge  v.  New  Orleans,  166  U.  S.  143  (1897)   27 

Gray  v.  Aldermen  of  Boston,  139  Mass.  328  (1885)   710 

Gray  v.  Boston,  15  Pick.  376  (1834)    192 

Gray  v.  Lenox,  215  Mass.  598   (1913)    78,  238 

Gray  v.  Portland  Bank,  3  Mass.  364   (1807)    401 

Gray  v.  Street  Commissioners  of  Boston,  138  Mass.  414  (1885)   192 

Great  Barrington  v.  Austin,  8  Gray  444  (1857)    326 

Great  Barrington  v.  Berkshire  Co.  Com'ers,  16  Pick.  572  (1835)     55,  74,  76,  562 
Great  Barrington  v.  Berkshire  County  Commissioners,  112  Mass.  218 

(1873)     260,  290 

Green  v.  Fall  River,  113  Mass.  262  (1873)    673,  679 

Green  v.  Frazier,  253  U.  S.  233  (1920)  102,  106 

Green  County  v.  Connors,  109  U.  S.  104  (1883)    28 

Greenfield  v.  Franklin  County  Commissioners,  135  Mass.  566  (1883)     216,  259,  293 

Greenfield  Savings  Bank  v.  Commonwealth,  211  Mass.  207  (1912)    520 

Greenfield  &  Turner's  Falls  St.  Ry.  Co.  v.  Greenfield,  187  Mass.  352  (1905)      588 

Greenhood  v.  McDonald,  183  Mass.  342   (1903)    386,  409,  687 

Greves  v.  Shaw,  173  Mass.  205  (1899)    82,  617,  632 

Gromer  v.  Standard  Dredging  Co.,  224  U.  S.  362  ( 1912)   50 

Groveland  v.  Medford,  1  Allen  23  (1861)   104 

Gulf  etc.  R.  R.  Co.  v.  Hewes,  183  U.  S.  66  (1901)    28,  29,  30 

Gundling  v.  Chicago,  177  U.  S.  183  (1900)    6,  7 

Guy  v.  Baltimore,  100  U.  S.  439  (1879)    34,  43 

H.  P.  Hood  &  Sons  v.  Commonwealth,  235  Mass.  572  (1920)   . .     46,  85,  434,  757 

Hadsell  v.  Hancock,  3  Gray  526  (1855) 109 

Hagar  v.  Reclamation  District  No.  108,  111  U.  S.  701  (1884)    61,  62,  188 

Hale  v.  Hampshire  County  Commissioners,  137  Mass.  Ill  (1884)  193 

Hale  v.  Henkel,  201  U.  S.  43  (1906)   592 

Hall  v.  Beebe,  223  Mass.  306  (1916)    614 

Hall  v.  Cushing,  9  Pick.  395  (1830)   245 

Hall  v.  Hall,  3  Allen  5  (1861)  : 339,  398 

Hall  v.  Middlesex  County  Commissioners,  10  Allen  100  (1865)  193,  251,  265,  292 

Hall  v.  Staples,  166  Mass.  399  (1896)    686,  688,  731 

Hall  v.  Street  Com.  of  Boston,  177  Mass.  434  (1901)  ....     124,  126,  709,  712,  714 

Hallett  v.  Bassett,  100  Mass.  167  (1868)    222,  223 

Hamilton  Co.  v.  Massachusetts,  6  Wall.  632  (1867)   13,  49,  532,  538 

Hamilton  Manufacturing  Co.  v.  Lowell,  185  Mass.  114  (1904)       191,  229,  243,  277 

Hammett  Co.  v.  Alfred  Peats  Co.,  217  Mass.  520  (1914)  154,  237,  745 

Hammond  v.  Lovell,  136  Mass.  184  (1883)    369 

Hampshire  v.  Franklin,  16  Mass.  76  (1819)    113 

Hancock  v.  Hazard,  12  Cush.  112  (1853)   326 

Hancock  v.  Muskogee,  250  U.  S.  454  (1919) 125 

Hand  v.  Brookline,  126  Mass.  324  (1879)    5 

Hanscom  v.  Lowell,  165  Mass.  419  (1896)   114 

Hardy  v.  Waltham,  7  Pick.  108  (1828)   216 

Hardy  v.  Yarmouth,  6  Allen  277  (1863)    246,  290,  409 

Harman  v.  New  Marlborough,  9  Cush.  525  (1852)    224,  225 

Harrington  v.  Glidden,  179  Mass.  486   (1901)    64,342,344,404 

Harrington  v.  Worcester,  6  Allen  576  (1863)    359,  364,  377 

Harrison  v.  Dolan,  172  Mass.  395  (1899)    351 

Hart  v.  Tax  Commissioner,  Mass.  (1921)    434,437,484 


xxxiv  Taxation  in  Massachusetts 

[Citations  are  to  Pages] 

Hartman  v.  Greenhow,  102  U.  S.  672  (1880)    24 

Harvard  College  v.  Aid.  of  Boston,  104  Mass.  470  (1870)     118,  119,  216,  217,  676 

Harvard  College  v.  Assessors  of  Cambridge,  175  Mass.  145  (1900)  200 

Harvard  College  v.  Gore,  5  Pick.  370  (1827)    222 

Harvard  College  v.  Kettell,  16  Mass.  204  (1819)    195,  216 

Harvey,  Re,  122  Fed.  Rep.  745  (1903)    346 

Harwood  v.  Donovan,  188  Mass.  487   (1905)    688,  713 

Harwood  v.  North  Brookfield,  130  Mass.  561  (1881)   266,  291,  305,  404 

Harwood  v.  Street  Commissioners  of  Boston,  183  Mass.  348  (1903) ....     126,  680 

Hatch  v.  Reardon.  204  U.  S.  152  (1907)  33,  81,  84,  601 

Hatfield  v.  King,  184  U.  S.  162  (1902)   64 

Hathaway  v.  Everett,  205  Mass.  246   (1910)    408 

Haven  v.  Essex  County  Commissioners,  155  Mass.  467  (1892)    295 

Haven  v.  Lowell,  5  Met.  35  (1842)   113 

Hawkes  v.  Kennebeck,  7  Mass.  461    (1811)    410 

Hawley  v.  Maiden,  204  Mass.  138  (1910)    74,  76 

Hawley  v.  Maiden,  232  U.  S.  1    (1914)    74,  76 

Hawkridge  v.  Treasurer  &  Receiver  General,  223  Mass.  134  (1916)  81,  618 

Hawks  v.  Davis,  185  Mass.  119   (1904)    376 

Hayden  v.  Foster,  13  Pick.  492  (1833)    276,  321,  343,  347,  350,  351 

Hays  v.  Drake,  6  Gray  387   (1856)    159,  397 

Hazen  v.  Essex  Co.,  12  Cush.  475  (1853)    103 

Head  v.  Amoskeag  Mfg.  Co.,  113  U.  S.  9  (1885)    752 

Head  Money  Cases,  112  U.  S.  580  (1884)   9 

Hefner  v.  Northwestern  Mutual  Life  Insurance  Co.,  123  U.  S.  747  (1887)...      67 

Heine  v.  Levee  Commissioners,  19  Wall.  655  (1873)   15,  67 

Hemenway  v.  Milton,  217  Mass.  230   (1914) 19,79 

Henderson  v.  Mayor  of  New  York,  92  U.  S.  259  (1875)   36 

Henderson  Bridge  Co.  v.  Henderson,  173  U.  S.  622  (1899)   43 

Henderson  Bridge  Co.  v.  Kentucky,  166  U.  S.  150  (1897)   37,  51 

Hendrick  v.  Maryland.  235  U.  S.  610  (1915)    5,  34 

Hester  v.  Collector  of  Brockton,  217  Mass.  422  (1914)     124,  677,  703,  710,  715,  725 

Hibben  v.  Smith,  191  U.  S.  310  (1903)    62,  128 

Hibernia  Savings  etc.  Association  v.  San  Francisco,  200  U.  S.  310  (1908)   ...       48 

Hicks  v.  Westport,  130  Mass.  478  (1881)    240,  403 

Higginson  v.  Boston,  212  Mass.  583  (1912)   115,  116,  149 

Higginson  v.  Nahant,  11   Allen  530   (1866)    102 

Hilbourne  v.  Suffolk,  120  Mass.  393  (1876)  673 

Hildreth  v.  Lowell,  11  Gray  345  (1858)   103 

Hill  v.  Bacon,  110  Mass.  387  (1872)   229,  351,  743 

Hill  v.  Boston,  122  Mass.  344  (1877) 410 

Hill  v.  Treasurer  &  Receiver  General,  227  Mass.  331  (1917)   610,  614 

Hill  v.  Treasurer  &  Receiver  General,  229  Mass.  474  (1918)   18,  623 

Hill  v.  Mowry,  6  Gray  551   (1856)   360,  377 

Hilliard  v.  Fells  Ice  Co.,  200  Mass.  331  (1909)   561 

Hillis  v.  O'Keefe,  189  Mass.  139  (1905)    '. 375,  376 

Hingham  &  Quincy  Bridge  &  Turnpike  Co.  v.  Norfolk  County,  6  Allen 

353    (1863)    114,  117 

Hitchcock  v.  Aldermen  of  Springfield,  121  Mass.  382  (1876)    ....     677,  689,  707 

Hittinger  v.  Boston,  139  Mass.  17  (1885)    241 

Hittinger  v.  Westford,  135  Mass.  258  (1888)    240,  242 

Hoadley  v.  Essex  Co.  Commissioners,  105  Mass.  519   (1870)     189,  193,  249,  444 

Hodgdon  v.  Haverhill,  193  Mass.  327  (1907)    126,  146 

Hodge  v.  Muscatine  County,  196  U.  S.  276  (1905)   . .     6,  7,  10,  58,  61,  62,  68,  128 
Hoge  v.  Richmond  etc.  R.  R.  Co.,  99  U.  S.  348  (1878)   15,  29 


Table  of  Cases  xxxv 

[Citations  are  to  Pages] 

Holbrook  v.  Brown,  214  Mass.  542   (1913) 357,  384 

Hollis  v.  Lynn,  237  Mass.  135  (1921)   298,  299 

Holmes  v.  Greene,  7  Gray  299   (1856)    222 

Holmes  v.  Taber,  9  Allen  246  (1864)    236 

Holt  v.  City  Council  of  Somerville,  127  Mass.  408  (1879)  103,  122,  129,  683,  684 

Holt  v.  Weld,  140  Mass.  578   (1886)    364 

Home  Insurance  Co.  v.  Augusta,  93  U.  S.  116  (18/6)    25,  28 

Home  Insurance  Co.  v.  New  York,  134  U.  S.  594  (1890)   36,  48,  49,  53 

Home  of  the  Friendless  v.  Rouse,  8  Wall.  430  (1869)   27,  29 

Home  Savings  Bank  v.  Boston,  131  Mass.  277  (1881)  357,  361,  362,  369 

Home  Savings  Bank  v.  Des  Moines,  205  U.  S.  503  (1907)   48 

Hood  v.  Mayor  &  Aldermen  of  Lynn,  1  Allen  103  (1861)   112 

Hood  Rubber  Co.  v.  Commonwealth,  238  Mass.  369  (1921)   738,  739 

Hooker  v.  McLennan,  236  Mass.  117  (1920)   317 

Hooper  v.  Bradford,  178  Mass.  95  (1901)    637 

Hooper  v.  California,   155  U.  S.  648   (1895)    35,  39 

Hooper  v.  Shaw,  176  Mass.  190  (1900)   619,  637 

Hopkins  v.  Reading,  170  Mass.  568  (1898)    '. .     259,  289,  290 

Horn  Silver  Mining  Co.  u..New  York,  143  U.  S.  305  (1892)   35,  39,  40 

Houck  v.  Little  River  Drainage  District,  239  U.  S.  254  (1915)   3 

Hough  v.  North  Adams,  196  Mass.  290  (1907)    W,  285,  561 

Houghton  v.  Boston,  159  Mass.  138  (1893)  323 

Howard  v.  Proctor,  7  Gray  128  (1856)   151,  281,  329,  331,  336,  397 

Howard  v.  Stevens,  3  Allen  409  (1862)    316 

Howe  v.  Boston,  7  Cush.  273  (1851)    403 

Howe  v.  Cambridge,  114  Mass.  388  (1874)   118,  122,  126,  128 

Howe  v.  Howe,  179  Mass.  546  (1901)    609,  630,  638,  640,  657,  661 

Howe  Machine  Co.  v.  Cage,  100  U.  S.  676  (1879)  35 

Hubbard  v.  Garfield,  102  Mass.  72   (1869)    308,  397 

Hubert  v.  New  Orleans,  215  U.  S.  170  (1909)   410 

Hudson  v.  Miles,  185  Mass.  582  (1904)   327 

Humphrey  v.  Peques,  16  Wall.  244  (1872)    15 

Hunnewell   v.  Charlestown,   106   Mass.  350    (1871)    386,409 

Hunt  v.  Boston,  183  Mass.  303  (1903)    67,  218,  350,  367 

Hunt  v.  Holston,  185  Mass.  137  (1904)  331 

Hunt  v.  Perry,  165  Mass.  287  (1896)   56,  79,  308,  472 

Hunter  v.  Johnson,  209  U.  S.  541   (1908)    61 

Hunter  v.  Pittsburgh,  207  U.  S.  161   (1907)    115 

Hurd  v.  Melrose,  191   Mass.  576   (1906)    333,  356,  366 

Hurley  v.  Hurley,  148  Mass.  444  (1889)    357,  373,  392 

Hurter  v.  Larrabee,  224  Mass.  218  (1916)   249 

Huse  v.  Amesbury  Board  of  Health,  163  Mass.  240  (1895)   730 

Huse  v.  Glover,  119  U.  S.  543   (1886)    5,  23,  24,  34 

Hussman  v.  Durham,  165  U.  S.  144  (1897) 47 

Hilton  v.  United  States,  3  Dall.  171  (1796)   13 

Illinois  Central  R.  R.  Co.  v.  Decatur,  147  U.  S.  190  (1893)  675 

Illinois  Central  R.  R.  Co.  v.  Kentucky,  218  U.  S.  551  (1910)   59,  64 

Inglee  v.  Bosworth,  5  Pick.  498  (1827)   147,  307,  315 

Ingraham  i>,  Doggett,  5   Pick.  451    (1827)    315 

Ingram  v.  Cowles,  150  Mass.  155   (1889)    241,  242,  344,  403 

Inman  Steamship  Co.  v.  Tinker,  94  U.  S.  243  (1876)   23 

International  Paper  Co.  v.  Burrill,  260  Fed.  Rep.  664  (1919)   500,  599 

International  Paper  Co.  v.  Commonwealth,  228  Mass.  101  (1917)    42 

International  Paper  Co.  v.  Commonwealth,  232  Mass.  7  (1919)    598 

International  Paper  Co.  v.  Massachusetts,  246  U.  S.  135  (1918)       38,  41,  42,  563 


xxxvi  Taxation  in  Massachusetts 

[Citations  are  to  Pages] 

International  Text-Book  Co.  v.  Pigg,  217  U.  S.  91  (1910)   39 

Iowa  v.  Shimmer,  248  U.  S.  115  (1918)    81 

Isbell  v.  Greylock  Mills,  231  Mass.  233  (1918)   358 

J.  L.  Hammett  Co.  v.  Alfred  Peats  Co.,  217  Mass.  520  (1914)   154,  237,  745 

J.  S.  Lang  Engineering  Co.  v.  Commonwealth,  231  Mass.  367  (1918)   519,  541,  542 

Jackman  v.  School  District  in  Salisbury,  5  Gray  413  (1855)   224 

Jackson   v.  Phillips,   14  Allen  539    (1867)    198,  199 

Janvrin  v.  Poole,  181   Mass.  463   (1902)    688 

Jenkins  v.  Andover,  103  Mass.  94  (1869)    110 

Jenkins  v.  Neff,  186  U.  S.  230  (1902)    509 

Jenks  v.  Liverpool,  London  &  Globe  Ins.  Co.,  206  Mass.  591   (1910)    376,  377 

Jennings  v.  Coal  Ridge  Imp.  etc.  Co.,  147  U.  S.  147  (1893)   59 

Jennings  v.  Collins,  99  Mass.  29    (1868)    229,  276,  308,  347,  350 

Jennison  v.  Hapgood,  10  Pick.  77  (1830) 223 

Jetton  v.  University  of  the  South,  208  U.  S.  489  (1908)   28,  67 

Jewett  v.  Mayor  of  Medford,  233  Mass.  65  (1919) 677 

Johnson  v.  Maryland,  254  U.  S.  51  (1920)    47,  49 

Johnson  v.  Mayor  of  Quincy,  198  Mass.  411   (1908)   ■ 154 

Johnson  v.  Mills,  10  Cush.  503   (1852)    327 

Jones  v.  Aldermen  of  Boston,  104  Mass.  461  (1870)   ....     122,  687,  688,  691,  695 

Jones  v.  Arena  Publishing  Co.,  171   Mass.  22   (1898)    345,  749 

Jones  v.  Lancaster,  4  Pick.  149  (1826)    401 

Jones  v.  Metropolitan  Park  Commissioners,  181  Mass.  494  (1902)   676,  688 

Jones  v.  Portland,  245  U.  S  .217  (1917)    106 

Jordan  v.  Jordan,  192  Mass.  337  (1906)   236 

Joyner  v.  School  District  in  Egremont,  3  Cush.  567  (1849)    311,  406 

Judd  v.  Thompson,  125  Mass.  553  (1878)    316 

Kallak,  Matter  of,  147  Fed.  Rep.  276  (1906)  346 

Kane  v.  New  Jersey,  242  U.  S.  160   (1916)    5,  34 

Kansas  City  etc.  R.  R,  Co.  v.  Botkin,  240  U.  S.  227  (1916)   36,  37 

Kansas  City  etc.  R.  R.  Co.  v.  Stiles,  242  U.  S  111,  118  (1916) 54 

Kansas  City  Southern  Ry.  Co.  v.  Road  Imp.  Dist.  U.  S.  (1921)        125 

Kansas  Pacific  R.  R.  Co.  v.  Prescott,  16  Wall  603  (1872)   47 

Kearns  v.  Cunniff,  138  Mass.  434  (1885)    229,  236 

Keen  v.  Sheehan,  154  Mass.  208  (1891)    356 

Keeney  v.  New  York,  222  U.  S.  525   (1912)    81,  607,  608 

Kehrer  v.  Stewart,  197  U.  S.  60  (1905)  36,  39,  42 

Keith  v.  Boston,  120  Mass.  108  (1876)    125,  691,  695 

Kelley  v.  Rhoads,  188  U.  S.  1   (1903)    43,  44 

Kelly  v.  Barton,  174  Mass.  396   (1899) 409 

Kelly  v.  O'Rourke,  232  Mass.  168  (1919)    284,  356 

Kelly  v.  Pittsburgh,  104  U.  S.  78  (1881)    66 

Kelso  v.  Boston,  120  Mass.  297  (1876)    686,  687,  689,  690 

Kemp  v.  Kemp,  223  Mass.  32  (1916)   638 

Kennedy  v.  Hodges,  215  Mass.  112  (1913)    81 

Kentucky  Railroad  Tax  Cases,  115  U.  S.  321    (1885) 53,  60,  61,  62,  63 

Kentucky  Union  Co.  v.  Kentucky,  219  U.  S.  140  (1911)   6,  64,  65,  68 

Keokuk  etc.  Bridge  Co.  v.  Illinois,  175  U.  S.  626  (1900)   37,  51 

Keokuk  &  Western  R.  R.  Co.  v.  Missouri,  152  U.  S.  301  (1894)  28,  29,  30 

Keokuk  Northern  Line  Packet  Co.  v.  Keokuk,  95  U.  S.  80  (1877)  5,  23 

Keough  v.  Aldermen  of  Holyoke,  156  Mass.  403  (1902)   328 

Kerr  v.  Atwood,  188  Mass.  506  (1905)    339 

Kerslake  v.  Cummings,  180  Mass.  65  (1901)    229,  367 

Keystone  Watch  Case  Co.  v.  Commonwealth,  212  Mass.  50  (1912)    ....     41,  563 
Kidd  v.  Alabama,  188  U.  S.  730  (1903)    56,  73,  74,  76 


Table  of  Cases  xxxvii 

[Citations  are  to  Pages] 

Kilburn  v.  Bennett,  3  Met.  199  (1841)   223,  225 

King  v.  Mullins,  171  U.  S.  401  (1898)   53,  64,  66 

King  v.  United  States,  99  U.  S.  229  (1878)    59 

King   v.  Whitcomb,   1    Met.   328    (1840)    282,330,337,398 

Kingman  v.  Brockton,  153  Mass.  255  (1891)    108,  109 

Kingman,  Petitioner,   153  Mass.  566   (1891)    113,  114,  117 

Kingman,  Petitioner,  170  Mass.  Ill  (1898)  114 

Kingsbury  v.  Chapin,  196  Mass.  533  (1907)    82,  83,  625,  638 

Kinney  v.  Treasurer  &  Receiver  Gen.,  207  Mass.  368  (1911)     76,  80,  81,  616,  617 

Kirkland  v.  Whately,  4  Allen  462  (1862)   222,  224 

Kirtland  v.  Hotchkiss,  100  U.  S.  491    (1879)    73,  74,  75 

Kittredge  v.  North  Brookfield,  138  Mass.  286  (1885)   105 

Knight  v.  Boston,  159  Mass.  551   (1893)    55,  192,  231,  441 

Knights  v.  Treasurer  &  Receiver  General,  237  Mass.  493  (1921) 

20,  114,  116,  411,  435,  666,  758 

Knowles  v.  Boston,  129  Mass.  551   (1880)    119,  407,  408 

Knowlton  v.  Moore,  136  Mass.  32   (1883)    353,  359,  385 

Knowlton  v.  Moore,  178  U.  S.  41  (1900)  13,  606,  607 

Koch   v.  Austin,  225   Mass.  215   (1916)    329,331,356 

Lamson  Cons.  Store  Service  Co.  v.  Boston,  170  Mass.  354  (1898) 

243,  266,  277,  561 

Lancy  v.  Abington  Savings  Bank,  177  Mass.  431  (1901)    385 

Lancy  v.  Boston,  186  Mass.  128  (1904)    218,  403,  740 

Lancy  v.  Snow,  180  Mass.  411   (1902)    354,  356,  359 

Lander  v.  Mercantile  National  Bank,  186  U.  S.  458  (1902)    61,  63 

Lane  v.  Richardson,  234   Mass.  403   (1920)    636,647,655 

Lane  County  v.  Oregon,  7  Wall.  71  (1868)  11,  15 

Lanesborough  v.  Berkshire  County  Commissioners,  131  Mass.  424  (1881)     262,  290 

Langdon  v.  Stewart,  142  Mass.  576  (1886)  359,  377 

Langley  v.  Chapin,  134  Mass.  82  (1883)    67,  350,  359,  387 

Larsen  v.  Dillenschneider,  235  Mass.  56   (1920)    276,  353,  360 

Lawrence  v.  Kimball,  1  Met.  524  (1840)    316,  399 

Lawrence  v.  McAlvin,  109  Mass.  311   (1872)    109 

Lawrence  v.  Webster,  167  Mass.  513  (1897)  711,  731 

Lawton  Spinning  Co.  v.  Commonwealth,  232  Mass.  28  (1919)  42 

League  v.  Texas,  184  U.  S.  156  (1902)    17,  65,  66,  68 

Leavenworth  R.  R.  Co.  v.  Lowe,  114  U.  S.  525  (1885)   47 

Leavitt  v.  Cambridge,  120  Mass.  157  (1876)    683,  684 

Lee  v.  Boston,  2  Gray  484  (1854)  222,  223 

Lee  v .  Lenox,  15  Gray  496  (1860)    224 

Lee  v.  Templeton,  6  Gray  579  (1856)   250 

Lee  v.  Templeton,  13  Gray  476  (1859)  406 

Lehigh  Valley  R.  R.  Co.  v.  Pennsylvania,  145  U.  S.  200  (1895)  40 

Leigh  v.  Green,  193  U.  S.  79  (1904)    61,  67 

Leloup  v.  Mobile,  127  U.  S.  645   (1888)    35,  38 

Lent  v.  Tillson,  140  U.  S.  316  (1891)   61 

Leominster  v.  Conant,  139  Mass.  384  (1885)   . .     282,  349,  398,  685,  686,  690  715 

Leonard  v.  New  Bedford,  16  Gray  292   (1860)    71,  189 

Lever  Bros.  Co.  v.  Commonwealth,  232  Mass.  22  (1919)   ..     9,  597,  598,  738,  739 

Libby  v.  Buraham,  15  Mass.  144  (1818)    147,  256,  307,  314,  315 

License  Tax  Cases,  5  Wall.  462  (1866)    8 

Lincoln  v.  Chapin,  132  Mass.  470   (1882)    157,  317,  396 

Lincoln  v.  Commonwealth,  164  Mass.  368  (1895)    350 

Lincoln  v.  Street  Com.  of  Boston,  176  Mass.  210   (1900)   124,  680,  687,  695,  713 
Lincoln  v.  Worcester,  8  Cush.  55  (1851)    288,  296,  401,  403 


xxxviii  Taxation  in  Massachusetts 

[Citations  are  to  Pages] 

Lincoln  v.  Worcester,  122  Mass.  119   (1877)    677,  695 

Lindsay  etc.  Co.  v.  Mullen,  176  U.  S.  126  (1900)    5,  34 

Lionberger  v.  Rouse,  9  Wall.  468  (1869)    507,  512 

Liquid  Carbonic  Co.  v.  Commonwealth,  232  Mass.  19  (1919)    42 

Litchfield  v.  Webster  County,  101  U.  S.  773   (1879)    67 

Little  v.  Cambridge,  9  Cush.  298  (1852)    249,  404 

Little  v.  Greenleaf,  7  Mass.  236  (1810)    314 

Little  v.  Holyoke,  177  Mass.  114  (1900)   5 

Little  v.  Little,  131   Mass.  367   (1881)    164,  510 

Little  v.  Merrill,  10  Pick.  543  (1830)    315 

Little   v.  Newburyport,  210  Mass.  414    (1912)    199,201 

Liverpool  etc.  Insurance  Co.  v.  Orleans  Board  of  Assessors,  221  U.  S.  346 

(1911)     74,  75,  76,  84 

Liverpool  Insurance  Co.  v.  Massachusetts,  10  Wall.  566  (1870)   40 

Loan  Association  v.  Topeka,  20  Wall.  655  (1874)   3,  17,  102,  106 

Locomobile  Co.  v.  Commonwealth,  232  Mass.  16  (1919)    598 

Locomobile  Co.  v.  Massachusetts,  246  U.  S.  146  (1918)   563 

Lodge  v.  Swampscott,  216  Mass.  260  (1913)    227,  268 

Lombard  v.  West  Chicago  Park  Commissioners,  181  U.  S.  33  (1901)   ....     65,  124 

Londoner  v.  Denver,  210  U.  S.  373  (1908)    60,  61,  62,  128 

Looney  v.  Crane  Co.,  245  U.  S.  178  (1917)    39,  40,  42 

Lorden  v.  Coffey,  178  Mass.  489   (1901)    125,  126,  680,  746 

Loring  v.  Gardner,  221   Mass.  571    (1915)    623,636 

Lothrop   v.  Ide,   13  Gray  93   (1859)    339,  398 

Loud  v.  Charlestown,  99  Mass.  208  (1868)    386,  409 

Loud   v.  Holden,   14  Gray   154    (1859)    345 

Louisiana  v.  Jumel,  107  U.  S.  711  (1882)    26 

Louisiana   v.  Pilsbury,   105  U.   S.  278   (1881)    25 

Louisville  v.  Louisville  Bank,  174  U.  S.  439   (1899)    29 

Louisville  etc.  Ferry  Co.,  v.  Kentucky,  188  U.  S.  385  (1903)    69,  75,  77 

Louisville  etc.  R.  R.  Co.  v.  Palmes,  109  U.  S.  244  (1883)   28,  29 

Louisville  First  National  Bank  v.  Kentucky,  9  Wall.  353  (1869)    48,  512 

Louisville  Third  National  Bank  v.  Stone,  174  U.  S.  432  (1899)   511 

Louisville  Water  Co.  v.  Clark,  143  U.  S.  1   (1892)   29 

Low   v.   Austin,    13    Wall.  33    (1871)    21,35 

Lowell  v.  Boston,  111  Mass.  454  (1873) 

3,  17,  102,  104,  107,  120,  121,  130,  730,  752 

Lowell  v.  French,  6  Cush.  223   (1850) 685,  722 

Lowell  v.  Hadley,  8  Met.  180   (1844)    122,  125,  685,  722 

Lowell  v.  Middlesex  Co.  Commissioners,  3  Allen  546  (1862)    291,  294,  296,  301 

Lowell  v.  Middlesex  County  Commissioners,  6  Allen  131    (1863)    191 

Lowell  v.  Middlesex  County  Commissioners,  146  Mass.  403  (1888)   ....     292,  582 
Lowell  v.  Middlesex  Co.  Commis.,  152  Mass.  372  (1890)   191,  241,  277,  294,  297 

Lowell  v.  Oliver,  8  Allen  247   (1864)    114 

Lowell  v.  Street  Commissioners  of  Boston,  106  Mass.  540   (1871)    ....     58,  192 

Lowell  v.  Wentworth,  6  Cush.  221   (1850)    685,  722 

Lowell  v.  Wheelock,  11   Cush.  391    (1853)    685,  722 

Lowell  v.  Wyman,  12  Cush.  273  (1853)   685 

Ludwig  v.  Western  Union  Tel.  Co.,  216  U.  S.  146  (1910)   42 

Lunenburg  v.  Walter  Heywood  Chair  Co.,  118  Mass.  540  (1875)   359 

Lyman  v.  Fiske,  17  Pick.  231   (1835)    221,  222,  319 

Lynde  v.  Brown,  143  Mass.  337  (1887)   229 

Lynde  v.  Maiden,  166  Mass.  244   (1896)    119,  361,  686,  722 

Lynde  v.  Melrose,  10  Allen  49  (1865)   361 

Lyng  v.  Michigan,  135  U.  S.  161  (1890)   36,  39 

Lynn  Workingmen's  Aid  Association  v.  Lynn,  136  Mass.  283  (1884)   200 


Table  of  Cases  xxxix 

[Citations  are  to  Pages] 

MacDonald  v.  Union  Freight  R.  R.  Co.,  190  Mass.  123  (1906)    589 

Mackall  v.  Chesapeake  etc.  Canal  Co.,  94  U.  S.  308  (1876)   26 

Mackay  Tel.  etc.  Co.  v.  Little  Rock,  250  U.  S.  94  (1919)   34,  54 

MacLeod  v.  United  States,  229  U.  S.  416  (1913)   15 

Macomber  v.  Eisner,  252  U.  S.  189  (1920)    443 

Macy  v.  Nantucket,  121  Mass.  351  (1876)    409 

Mager  v.  Grima,  8  How.  490  (1849)    32 

Magoun  v.  Illinois  Trust  &  Savings  Bank,  170  U.  S.  283  (1898)   608 

Maguire  v.  Tax  Commissioner,  230  Mass.  503    (1918)     56,  79,  84,  467,  473,  474 

Maguire   v.  Trefry,  253  U.  S.   12    (1920)    56,84,473 

Maine  v.  Grand  trunk  R.  R.  Co.,  142  U.  S.  217  (1891)   ....     12,  37,  40,  45,  70 

Maine  Central  R.  R.  Co.  v.  Maine,  96  U.  S.  499  (1877)   29 

Maish  v.  Arizona,  164  U.  S.  599  (1896)   47 

Maloy  v.  Holl,  190  Mass.  277  (1906)    682,  703,  746 

Manson  v.  Felton,  13  Pick.  206  (1832)    239 

Manufacturers'  Insurance  Co.  v.  Loud,  99  Mass.  146  (1868)     13,  49,  98,  532,  538 
Marconi  Wireless  Tel.  Co.  v.  Commonwealth,  218  Mass.  558  (1914) 

36,  39,  41,  42,  43,  563 

Market  National  Bank  v.  Belmont,  137  Mass.  407  (1884)   308,  351 

Marshall  v.  New  York,  254  U.  S.  380  (1920) 66 

Martin  L.  Hall  Co.  v.  Commonwealth,  215  Mass.  326  (1913)   18 

Marye  v.  Baltimore  etc.  R.  R.  Co.,  127  U.  S.  123  (1888)   43,  72 

Mason  v.  Smith,  131  Mass.  510  (1881)    234 

Masonic  Building  Association  v.  Brownell,  164  Mass.  306   (1895)     672,  690,  692 
Masonic  Education  &  Charity  Trust  v.  Boston,  201  Mass.  320  (1909) 

194,  199,  202,  581 
Massachusetts  v.  Western  Union  Tel.  Co.,  141  U.  S.  40  (1891)  41,  50,  51,  579 
Massachusetts  General  Hospital  v.  Belmont,  233  Mass.  190  (1919) 

94,  157,  201,  202,  203,  262.  267,  269,  295 
Massachusetts  General  Hospital   v.  Belmont,  238  Mass.  396   (1921)     4,  94,  294 

Massachusetts  General  Hospital  v.  Boston,  212  Mass.  20  (1912)    218,  744 

Mass.  Gen.  Hospital  v.  Somerville,  101  Mass.  319  (1869)   191,  200,  276,  403 

Massachusetts  Mutual  Life  Insurance  Co.  v.  Green,  185  Mass.  306   (1904)     374 
Massachusetts  Society  for  the  Prevention  of  Cruelty  to  Animals  v.  Boston. 

142  Mass.  24  (1886)    198,  199 

Mattingly  v.  District  of  Columbia,  97  U.  S.  687  (1878)   65 

Maxwell  v.  Bugbee,  250  U.  S.  625  (1919)    83 

May  v.  New  Orleans,  178  U.  S.  496  (1900)    21 

McCall  v.  California,  136  U.  S.  109   (1890)    34 

McCoach  v.  Minehill  &  Schuylkill  Haven  R.  R.  Co.,  228  U.  S.  295  (1913)     550 

McConnell  v.  Kelley,  138  Mass.  372   (1885)    223 

McCormick  v.  Cheevers,  124  Mass.  262  (1878)  747 

McCray  v.  United  States,  195  U.  S.  27  (1904)   8,  14 

McCulloch  v.  Maryland,  4  Wheat.  316   (1819)    15,  47,  48,  50,  51,  69 

McCurdy  v.  McCurdy,  197  Mass.  248  (1908)    81,  618 

McDaniel  v.  King,  5  Cush.  469  (1850)    222 

McDonough  v.  Everett,  237  Mass.  378  (1921)   228,  348,  353 

McGahey  v.  Virginia,  172  U.  S.  102   (1890)    24 

McGee  v.  Mathias,  4  Wall.  143  (1866)    26 

McGee   v.  Salem,   149   Mass.  238    (1889)    191,335,337,345,406,407 

McGoon  v.  Scales,  9  Wall.  23  (1869)    47 

McLean  v.  Denver  etc.  R.  R.  Co.,  203  U.  S.  38  (1906)    9 

McLoud  v.  Mackie,  175  Mass.  355  (1900)    229,  367 

McMillen   v.  Anderson,  95  U.  S.  37   (1877)    61,63,68 

McNeil  v.  O'Brien,  204  Mass.  594   (1910)    363,  376,  378 


xl  Taxation  in  Massachusetts 

[Citations  are  to  Pages] 

Meacham  v.  Fitchburg  R.  R.  Co.,  4  Cush.  291  (1849)   673 

Mead  v.  Acton,  139  Mass.  341    (1885)    107,  108,  148,  149 

Mead  v.  Boxborough,  11  Cush.  362  (1853)   222 

Melcher  v.  Boston,  9  Met.  73  (1845)   50 

Memphis  City  Bank  v.  Tennessee,  161  U.  S.  186  (1896)   30 

Memphis  etc.  R.  R.  Co.  v.  Gaines,  97  U.  S.  697  (1878)   28,  29,  30 

Memphis  etc.  R.  R.  Co.  v.  Railroad  Commissioners,  112  U.  S.  609  (1884)   .      28 
Memphis  Gas  Light   Co.   v.  Shelby   County   Taxing  District,   109  U.  S. 

398  (1883)    27 

Mercantile  Bank  v.  Tennessee,  161  U.  S.  161   (1896)    28 

Mercantile  National  Bank  v.  New  York,  121  U.  S.  138  (1887)    508,  509 

Merchants  Bank  v.  Cook,  4  Pick.  405  (1826)   410 

Merchant's  etc.  Bank  v.  Pennsylvania,  167  U.  S.  461  (1897)   61 

Merchant's  Loan  &  Trust  Co.  v.  Smietanka,  255  U.  S.  509  (1921)   435 

Merchants  National  Bank  v.  Richmond,  U.S.  (1921)    509 

Meredith  v.  United  States,  13  Pet.  486   (1839)    11 

Meriweather  v.  Garrett,  102  U.  S.  472   (1880)    11,  15,  26,  115 

Merrick  v.  Amherst,  12  Allen  500   (1866)    110,  113,  114 

Merrimack  River  Savings  Bank  v.  Lowell,  152  Mass.  556   (1891)    5 

Metropolis  Theatre  Co.  v.  Chicago,  228  U.  S.  61   (1913)    53 

Metropolitan  Life  Insurance  Co.  v.  Commonwealth,  198  Mass.  466  (1908)     524 

Metropolitan  Life  Ins.  Co.  v.  Ins.  Commissioner,  208  Mass.  386  (1911)   522 

Metropolitan  Life  Ins.  Co.  v.  Ins.  Commissioner,  220  Mass.  52  (1914)    523 

Metropolitan  Life  Ins.  Co.  v.  New  Orleans,  205  U.  S.  395  (1907)   ....     69,  74,  76 

Metropolitan  Park  Commissioners,  Re,  209  Mass.  381   (1911)    115 

Mexican  Central  Ry.  Co.  v.  Commonwealth,  192  Mass.  129   (1906) 535 

Meyer  v.  Wells,  Fargo  &  Co.,  223  U.  S.  298  (1912)   42,  71 

Michigan  Cent.  R.  R.  Co.  v.  Powers,  201  U.  S.  245  (1906)    ..     16,  53,  61,  62,  70 

Middlesex  Railroad  Co.  v.  Charlestown,  8  Allen  330  (1864)    403,  531 

Milford  v.  Worcester  Co.  Com'ers.,  213  Mass.  162   (1912)   19,  194,  199,  207,  295 
Milford  Water  Co.  v.  Hopkinton,  192   Mass.  491    (1906)   207,  217,  285,  290,  581 

Millard  v.  Roberts,  202  U.  S.  429   (1906)    101 

Miller  v.  Fitchburg,  180  Mass.  32  (1901)    217,  220 

Milligan  v.  Drury,  130  Mass.  428  (1881)   190,  235 

Miner  v.  Pingree,   110  Mass.  47   (1872)    227 

Minneapolis  etc.  R.  R.  Co.  v.  Gardner,  177  U.  S.  332  (1900)    29 

Minot  v.  Joy,  118  Mass.  308  (1875)    • 234 

Minot  v.  Treas.  &  Receiver  General,  207  Mass.  588   (1911)       99,  607,  622,  623 

Minot  v.  West  Roxbury,  112  Mass.  1  (1873)    103,  112 

Minot  v.  Winthrop,  162  Mass.  113  (1894) 

8,  14,  89,  98,  99,  100,  606,  607,  608,  620,  629 

Missouri    v.   Dockery,   191   U.   S.   165    (1903)    54 

Mitchell  v.  Green,  10  Met.  101   (1845)    383 

Mitchell  v.  Leavenworth  County,  91  U.  S.  206   (1875)    48,  49 

Mitton  v.  Treasurer  &  Receiver  General,  229  Mass.  140  (1918)    641,  642 

Mobile  v.  Watson,  116  U.  S.  289   (1886)    25,  115 

Mobile  etc.  R.  R.  Co.  v.  Tennessee,  153  U.  S.  486  (1894)    26 

Moffitt  v.  Kelly,  218  U.  S.  400  (1910)    607,  622 

Molly  Varnum  Chapter,  D.  A.  R.  v.  Lowell,  204  Mass.  487  (1910)    '      199 

Monson  v.  Palmer,  8  Allen  551    (1864)    : 225 

Monterey  v.  Jacks,  203  U.  S.  360  (1906)    115 

Moody  v.  Newburyport,  3  Met.  431    (1841)    317 

Moody  v.  Shaw,  173  Mass.  375  (1899)    82,  625 

Moore  v.  Sanford,  151  Mass.  285  (1890)    103 

Moore  v.  Tax  Commissioner,  237  Mass.  574  (1921)    447 

Moors  v.  Street  Commissioners  of  Boston,  134  Mass.  431   (1883)    ....     265,  292 


Table  of  Cases  xli 

[Citations  are  to  Pages] 

Moors  v.  Treasurer  &  Receiver  General,  237  Mass.  254  (1921)  640,  641,  642 

Moran  v.  New  Orleans,  112  U.  S.  69  (1884) 35 

Morgan  v.  Louisiana,  93  U.  S.  217   (1876)    28 

Morgan's  Steamship   Co.  v.  Louisiana   Board   of   Health,   118  U.  S.   455 

(1886)     3,  9,  24,  36 

Morris  Canal  etc.  Co.  v.  Baird,  239  U.  S.  126   (1915)    28 

Morrison  v.  Berkshire  Loan  &  Trust  Co.,  229  Mass.  519  (1918)   635 

Morrison  v.  Hass,  229  Mass.  514  (1918)    635 

Morse  v.  Lowell,  7  Met.  152  (1843)    397 

Morse  v.  Stocker,  1  Allen  150  (1861)   120,  708,  724 

Morse  v.  Street  Commissioners  of  Boston,  197  Mass.  292  (1908)  . .     124,  691,  746 
Mt.  Auburn  Cemetery  v.  Cambridge,  150  Mass.  12  (1889)    ..     207,  217,  676,  715 

Mt.  Hermon  Boys'  School  v.  Gill,  145  Mass.  139  (1887)    200 

Mount  Hope  Cemetery  v.  Boston,  158  Mass.  509  (1893)    115 

Mount  Pleasant  v.  Beckwith,  100  U.  S.  514   (1879)    25 

Mountain  Timber  Co.  v.  Washington,  243  U.  S.  219  (1917)   4 

Moynihan  v.  Todd,  188  Mass.  301  (1905)   335 

Murphy  v.  Clinton,  182  Mass.  198  (1902)    158,  685,  686 

Murray  v.  Berkshire  Life  Insurance  Co.,  104  Mass.  586  (1870)    508,  531 

Murray  v.  Charleston,  96  U.  S.  432   (1877)    24,  75 

Murray's  Lessee  v.  Hoboken  Land  etc.  Co.,  18  How.  272  (1855)    66,  750 

Mutual   Benefit  Life  Ins.  Co.   v.  Commonwealth,   227    Mass.   63    (1917) 

20,  57,  451,  522 

Nashville  etc.  R.  R.  Co.  v.  Alabama,  128  U.  S.  96  (1888)   9 

Nathan  v.  Louisiana,  8  How.  73   (1849)    15,  22,  33 

Natick  &  Cochituate  Street  Ry.  Co.  v.  Wellesley,  207  Mass.  514  (1911)..      588 
National   Bank   of   Commerce    v.   New   Bedford,    155    Mass.   313    (1892) 

267,  292,  294,  299,    510,  511,  514,  537 
National  Bank  of  Commerce  v.  New  Bedford,  175  Mass.  257  (1900) 

267,  268,  295,  298,  510,  537 

National  Bank  of  Commerce  v .  Seattle,  166  U.  S.  463  (1897) 509 

National  Bank  of  Redemption  v.  Boston,  125  U.  S.  60  (1888)    509 

National  Fireproofing  Co.  v.  Revere,  217  Mass.  63  (1914)   . .     265,  269,  292,  294 

Needham  v.  Morton,  146  Mass.  476  (1888)   284 

Neff  v.  Wellesley,  148  Mass.  487  (1899)   5 

Nelson  v.  Milford,  7  Pick.  18  (1828)    109 

Neuert,  v.  Boston,  120  Mass.  338  (1876)   5 

New  England  Hospital  v.  Boston,  113  Mass.  518  (1873)   201 

New  England  Hospital  v.  Street  Commissioners  of  Boston,  188  Mass.  88 

(1905)    122,  681 

New  England  Sanitarium  v.  Stoneham,  205  Mass.  335  (1910)   199,  202 

New  England  Sanitarium  v.  Stoneham,  233  Mass.  171  (1919)   202 

New  England  Theosophical  Corporation  v.  Boston,  172  Mass.  60  (1898)..       199 

New  England  Trust  Co.  v.  Abbott,  205  Mass.  279  (1910)   615 

New  England  Trust  Co.  v.  White,  224  Mass.  332  (1916)  661 

New  Jersey  v.  Anderson,  203  U.  S.  483  (1906)   3,  6,  11,  67,  346 

New  Jersey  v.  Wilson,  7  Cranch  164  (1812)    26,  27 

New  Jersey  v.  Yard,  95  U.  S.  104  (1877)   29 

New  Jersey  Central  R.  R.  Co.  v.  Jersey  City,  209  U.  S.  473  (1908)  15 

New  Orleans  v.  Houston,  119  U.  S.  265  (1886)    57,  74,  76 

New  Orleans  v.  Stempel,  175  U.  S.  309  (1899)    74,  76,  77 

New  Orleans  v.  Water  Works  Co.,  142  U.  S.  79  (1891)    115 

New  Orleans  etc.  R.  R.  Co.  v.  New  Orleans,  143  U.  S.  192  (1892)   27 

New  York  v.  Barker,  179  U.  S.  279  (1900)   ". 55 

New  York  v.  Cook,  148  U.  S.  397  (1893)   28,  29 


xlii  Taxation  in  Massachusetts 

[Citations  are  to  Pages] 

New  York  v.  Knight,  192  U.  S.  21  (1904)   33 

New  York  v.  Reardon,  204  U.  S.  142  (1907)    53 

New  York  v.  Roberts,  171  U.  S.  658  (1898)   44 

New  York  v.  State  Board  of  Tax  Commissioners,  199  U.  S.  1  (1905) ....     27,  53 

New  York  v.  Tax  etc.  Commissioners,  4  Wall.  244  (1866)    48,  508,  510 

New  York  v.  Tax  etc.  Commissioners,  104  U.  S.  466  (1881)   22 

New  York  v.  Weaver,  100  U.  S.  539  (1879)   509 

New  York  Bank  v.  New  York  County,  7  Wall.  30  (1868)   48 

New  York  Central  R.  R.  Co.  v.  Miller,  202  U.  S.  584  (1906)   72 

Ne.7  York  etc.  R.  R.  Co.  v.  Pennsylvania,  158  U.  S.  431  (1895)   44 

New  York  Trust  Co.  v.  Eisner,  U.S.  (1921)   13 

Newburyport  v.  Davis,  209  Mass.  126  (1911)    326,  327 

Newburyport  v.  Essex  Co.  Com.,  12  Met.  211   (1846)    ..     183,  264,  265,  291,  296 

Newburyport  v.  Fidelity  Insurance  Co.,  197  Mass.  596  (1908)   397 

Newburyport  v.  Spear,  204  Mass.  146  (1910)    397 

Newcomb  v.  Paige,  224  Mass.  516  (1916)   79 

Newcomb  v.  Wallace,  112  Mass.  25  (1873)    351 

Newell  v.  Hadley,  206  Mass.  335   (1910)    374 

Nicchia  v.  New  York,  254  U.  S.  228  (1920)    12 

Nichol  v.  Ames,  173  U.  S.  509  (1899) 13 

Nickerson  v.  Boston,  131  Mass.  306  (1881)    129,  730 

Nickerson  v.  Hyde  Park,  209  Mass.  365   (1911) 391 

Norcross  v.  Milford,  150  Mass.  237   (1889)    403 

Norfolk  etc.  R.  R.  Co.  v.  Pennsylvania,  136  U.  S.  114   (1890)    34,  39 

Norfolk  etc.  R.  R.  Co.  v.  Sims,  191  U.  S.  441   (1903)   35,  36,  39 

Norris  v.  Boston,  4  Met.  282   (1842)    9,  36 

North  Dakota  v.  Hanson,  215  U.  S.  515  (1910)    52 

North  Missouri  R.  R.  Co.  v.  Maguire,  20  Wall.  46  (1873)    27 

Northampton   v.   Hampshire   County   Com.,   145    Mass.    108    (1887)    ...     89,90 

Northampton  Bridge  Case,  116  Mass.  442  (1875)    114,  117 

Northern  Massachusetts  "St.  Ry.  Co.  v.  Westminster,  227  Mass.  547  (1917)       248 

Northern  Pacific  R.  R.  Co.  v.  Meyers,  172  U.  S.  589  (1899)    47 

Northwestern  Life  Ins.  Co.  v.  Wisconsin,  247  U.  S.  132  (1918)   54 

Northwestern  Union  Packet  Co.  v.  St.  Louis,  100  U.  S.  423  (1879)   23,  34 

Norton  v.  Boston,  119  Mass.  194  (1875)    386,  409,  687 

Norwich  v.  Hampshire  County  Commissioners,  13  Pick.  60  (1832)     113,  114,  117 
Norwich  &  Worcester  R.  R.  Co.  v.  Worcester  County  Commissioners,  151 

Mass.  69   (1890)    740 

Norwood  v.  Baker,  172  U,  S.  269  (1898)   125 

Noyes  v.  Hale,  137  Mass.  266  (1884)    266,  272,  277,  281,  305,  306,  405 

Noyes  v.  Haverhill,  11  Cush.  338  (1853)    337,  401 

Nute  v.  Boston  Co-operative  Building  Co.,  149  Mass.  465  (1889)   724 

Nutting  v.  Massachusetts,  183  U.  S.  553  (1902) 33 

Oakham  v.  Hall,  112  Mass.  535   (1873)    228,  308,  309,  364 

O'Callaghan  v.  Lancy,  187  Mass.  474   (1905)    ' 384 

O'Connell  v.  First  Parish  in  Maiden,  204  Mass.  118  (1910)     126,  709,  715,  746,  747 

O'Day  v.  Bowker,  143  Mass.  59   (1886) 375,  384,  385 

Ohio  Ins.  etc.  Co.  v.  Debolt,  16  How.  416  (1853)    28 

Ohio  Tax  Cases,  232  U.  S.  576  (1914)   7,  45,  53,  57 

O'Keeffe  v.  Somerville,  190  Mass.  110  (1906)   89,  97,  99,  100 

Oklahoma  v.  Wells,  Fargo  &  Co.,  223  U.  S.  298  (1912)   40 

Oklahoma  Rv.  Co.  v.  Severus  Paving  Co.,  251  U.  S.  104  (1919)   128 

Old  Col.  Trust  Co.  v.  Commonwealth,  220  Mass.  409  (1915)  . .     517,  518,  519,  569 
Old  Colony  Trust  Co.  v.  Treasurer  &  Receiver  General,         Mass.      (1921) 

11,  637,  696 


Table  of  Cases  xliii 

[Citations  are  to  Pages] 

Old  Dominion  Co.  v.  Commonwealth,  237  Mass.  269  (1921)   39,  564 

Old  Dominion  Steamship  Co.  v.  Virginia,  198  U.  S.  299  (1905)     43,  69,  71,  590 

Old  South  Association  v.  Boston,  212  Mass.  299  (1912)    216 

Old  South  Society  v.  Boston,  127  Mass.  378  (1879)    206 

Oliver  v.  Colonial  Gold  Co.,  11  Allen  283  (1865)   596 

Oliver  v.  Gale,  182  Mass.  39  (1902) 148 

Oliver  v.  Liverpool  &  London  Life  and  Fire  Ins.  Co.,  100  Mass.  531  (1868) 

14,  99,  525 

Oliver  v.  Lynn,  130  Mass.  143  (1881)   249,  404 

Oliver  w.  Washington  Mills,  11  Allen  268  (1865)    30,  89,  97,  100,  532 

Olympia  Theatres,  Inc.  v.  Commonwealth,  238  Mass.  374   (1921)    739 

Onachita  Packet  Co.  v.  Aiken,  121  U.  S.  444  (1887)   23,  34 

Ontario  Land  Co.  v.  Yordy,  212  U.  S.  152  (1909)   59 

Opinion  of  the  Justices,  7  Mass.  523  (1811) 188 

Opinion  of  the  Justices,  1   Met.  580  (1840)    47 

Opinion  of  the  justices,  18  Pick.  575  (1836)    304 

Opinion  of  the  Justices,  5  Met.  587   (1843)    187,  223,  224 

Opinions  of  the  Justices,  126  Mass.  547  (1781)    101 

Opinion  of  the  Justices,  126  Mass.  557  (1878)   101 

Opinion  of  the  Justices,  150  Mass.  592   (1890)    104,  106 

Opinions  of  the  Justices,  155  Mass.  598  (1892)    106 

Opinion  of  the  Justices,  160  Mass.  586   (1894)    16 

Opinion  of  the  Justices,  166   Mass.  589   (1896)    108 

Opinion  of  the  Justices,  175  Mass.  599  (1900) 109 

Opinion  of  the  Justices,  182  Mass.  605   (1903)    104,  106 

Opinion  of  the  Justices,  186  Mass.  603   (1904)    107,  108 

Opinion  of  the  Justices,  190  Mass.  611   (1906)    107,  108 

Opinion  of  the  Justices,  195  Mass.  607  (1908) 

12,  55,  89,  90,  92,  93,  94,  194,  208,  211,  220,  431 

Opinion  of  the  Justices,  196  Mass.  603  (1908)    14,  89,  98,  99,  100,  600 

Opinion  of  the  Justices,  204   Mass.  607   (1910)    104,  106,  111 

Opinion  of  the  Justices,  208  Mass.  619   (1911)    5,  12,  89,  90,  98,  107 

Opinion  of  the  Justices,  211    Mass.  608   (1912)    108,759 

Opinion  of  the  Justices,  211  Mass.  624  (1912)   104,  106,  111 

Opinion  of  the  Justices,  214  Mass.  598  (1913)    110 

Opinion  of  the  Justices,  220  Mass.  613  (1915) 

12,  14,  89,  90,  94,  98,  99,  431,  454 

Opinion  of  the  Justices,  229  Mass.  601   (1918)    18 

Opinion   of  the  Justices,  231    Mass.  603    (1919)    103,  105,  123 

Opinion  of  the  Justices,  234  Mass.  612   (1920)    113,  115 

Orient  Insurance  Co.  v.  Orleans  Board  of  Assessors,  221  U.  S.  358  (1911) 76 

Origet  v.  Hedden,  155  U.  S.  228  (1894)    61 

Orleans  Board  of  Assessors  v.  N.  Y.  Life  Ins.  Co.,  216  U.  S.  517  (1910)..     76,  442 

Orr  v.  Gilman,   183  U.  S.  278   (1901)    608,  619 

Osborn  v.  Danvers,  6  Pick.  98  (1828)   402 

Osborne  v.  Florida,  164  U.  S.  650   (1897)    42 

Osborne  v.  Mobile,  16  Wall.  33  (1871)   35 

Osgood  v.  Tax  Commissioner,  235  Mass.  88  (1920)    18,  456.  457 

Osterberg  v.  Union  Trust  Co.,  93  U.  S.  424  (1876)   67 

Otis  v.  Boston,  12  Cush.  44  (1853)   223 

Otis  Co.  v.  Ware,  8  Gray  509  (1857)    259,  289,  294 

Owensboro  National  Bank  v.  Owensboro,  173  U.  S.  664  (1899)     57,  507,  510,  511 

Pacific  Express  Co.  ».  Seibert,  142  U.  S.  339   (1892)    40,  45,  53 

Pacific  Gas  etc.  Co.  v.  Sacramento,  251  U.  S.  22  (1919)   130 

Pacific  R.  R.  Co.  v.  Maguire,  20  Wall.  36  (1873)   26 


xliv  Taxation  in  Massachusetts 

[Citations  are  to  Pages] 

Page  v.  Melrose,  186  Mass.  361   (1904)    285,  293,  299 

Paine  v.  Woods,  108  Mass.  160  (1871)   673 

Palfrey  v.  Boston,  101   Mass.  329   (1869)    48,  50,  52 

Palmer  v.  Kelleher,  111  Mass.  320  (1873)   248 

Palmer  v.  McMahon,  133  U.  S.  660  (1890)    62,  66,  128,  509,  510 

Palmer  v.  Treasurer  &  Receiver  General,  222  Mass.  263  (1915)   615 

Palmer  Co.  v.  Ferrill,  17  Pick.  58   (1835)    673 

Parke  v.  Boston,  175  Mass.  464   (1900)    713 

Parker  v.  Baxter,  2  Gray   185   (1854)    227,  350 

Parkersburg  etc.  Transp.  Co.  v.  Parkersburg,  107  U.  S.  691  (1882)   5,  23,  34 

Parkhurst  v.  Ginn,  228  Mass.  159   (1917)    636 

Parkhurst  v.  Treasurer  &  Receiver  General,  228  Mass.  196  (1917)    620 

Parks  v.  Hampden,  120  Mass.  395   (1876)    673 

Parsons  v.  District  of  Columbia,  170  U.  S.  45  (1898)    60 

Parsons  v.  Goshen,  11  Pick.  396   (1831)    112 

Parsons  v.  Lenox,  228  Mass.  231    (1917)    ." 291 

Parsons  v.  Worcester,  234  Mass.  108  (1919)    710 

Passavant  v.  United  States,  148  U.  S.  214  (1893)   61 

Patapsco  Guano  Co.  v.  Board  of  Agriculture,  171  U.  S.  350  (1898)    ....     21,  22 

Patton   v.  Brady,   184  U.  S.  608    (1902)    14,  25 

Patton  v.  Springfield,  99  Mass.  627   (1868)    710 

Paul  v.  Chickering,  117   Mass.  265   (1875)    234 

Paul  v.  Virginia,  8  Wall.  101   (1868)    31 

Payson  v.  Tufts,  13  Mass.  493   (1816)    239 

Peabody  v.  Boston  Elevated  Ry.  Co.,  191  Mass.  513  (1906)    673,  674 

Peabody  v.  Essex  County  Commissioners,  10  Gray  97   (1857)    250 

Peabody  v.  Treasurer  &  Receiver  General,  215  Mass.  129  (1913)    80,  617 

Pearmain  v.  Mass.  Hospital  Life  Insurance  Co.,  206  Mass.  377  (1910)    ..       370 

Pease  v.  Smith,  24  Pick.  122  (1834)   317 

Pease  v.  Whitney,  8  Mass.  93   (1811)    315 

Peette  v.  Morgan,   19  Wall.  582    (1873)    24 

Pejepscut  Proprietors  v.  Ransom,  14  Mass.  145  (1817)   348 

Pelton  v.  Commercial  National  Bank,  101  U.  S.  143  (1879)    509 

Pembina  etc.  Mining  Co.  v.  Pennsylvania,  125  U.  S.  181  (1888)    ....     35,  38,  40 
People  v.  Compagnie  Generale  Transatlantique,  107  U.  S.  59  (1882)     21,  22,  36 

People  v.  Squire,  145  U.  S.  175  (1892)    9 

People  v.  The  Commissioners,  4  Wall.  244   (1866)    48,  508,  510 

Perkins   v.  Westwood,  226   Mass.  268    (1917)    9,89,97,99,431 

Perry  v.  Lancy,  179  Mass.  183  (1901)    356,  359,  375,  376,  377,  378 

Peterson  v.  Iowa,  245  U.  S.  170  (1917)    32 

Phelon  v.  Granville,  140  Mass.  386   (1886)    159,  282 

Phelps  v.  Creed,  231  Mass.  228  (1918)    350,  386 

Phi  Beta  Epsilon  Corporation  v.  Boston,  182  Mass.  457  (1903)    199 

Philadelphia  etc.  Ass'n.  v.  New  York,  119  U.  S.  110  (1886)    40 

Philadelphia  etc.  R.  R.  Co.  v.  Maryland,  10  How.  425  (1850)    28 

Philadelphia  etc.  Steamship  Co.  v.  Pennsylvania,  122  U.  S.  326  (1887)..     37,  45 
Phillips  Academy  v.  Andover,  175  Mass.  118  (1900)     105,  119,  122,  146,  200,  675 

Phinney  v.  Foster,  189  Mass.  182   (1905)    191,  233,  235,  371 

Phoenix  Insurance  Co.  v.  Tennessee,  161  U.  S.  174  (1896)   27 

Picard  v.  East  Tennessee  etc.  R.  R.  Co.,  130  U.  S.  637  (1889)    28 

Pickard  v.  Pullman  Southern  Car  Co.,  117  U.  S.  46  (1886)    35,  38 

Pickering  v.  Cambridge,  144  Mass.  244   (1887)    224,225 

Pierce   v.  Benjamin,  14  Pick.  356   (1833)    336,337,398 

Pierce  v.  Boston,  3  Met.  520  (1842)   , 396 

Pierce  v.  Cambridge,  2  Cush.  611   (1849)   200 

Pierce  v.  Eddy,  152  Mass.  594  (1891)    240,  241,  344 


Table  of  Cases  xlv 

[Citations  are  to  Pages] 

Pierce  v.  Stevens,  205  Mass.  219  (1910)    620 

Pingree  v.  Berkshire  County  Commissioners,  102  Mass.  76  (1869)   191,  260 

Pittsburgh  etc.  Coal  Co.  v.  Bates,  156  U.  S.  584  (1895)    44 

Pittsburgh  etc.  Railway  Co.  v.  Backus,  154  U.  S.  421  (1894)  ..'..  60,  63,  70,  71 
Pittsburgh  etc.  Railway  Co.  v.  Board  of  Public  Works,  172  U.  S.  32  (1898)    62 

Piqua  Bank  v.  Knoop,  16  How.  369   (1853)    26,  27 

Pixley   v.  Pixley,   164   Mass.  335    (1895)    359 

Piatt  v.  Glover,  136  Mass.  115  (1883)   348 

Plummer  v.  Coler,  178  U.  S.  115   (1900)    13,  49,  608,  619 

Plunkett  v.  Old  Colony  Trust  Co.,  233  Mass.  471   (1919)    606 

Plymouth  v.  Wareham,   126   Mass.  475   (1879)    252 

Plympton  v.  Boston  Dispensary,  106  Mass.  544   (1871)    236 

Poindexter  v.  Greenhow,  114  U.  S.  270  (1884)    24 

Pollock  v.  Farmers'  Loan  &  Trust  Co.,  157  U.  S.  429  (1895)     3,  12,  13,  14,  605 

Pollock  v.  Farmers'  Loan  &  Trust  Co.,  158  U.  S.  601   (1895)   13,  605 

Pond  v.  Negus,  3  Mass.  230  (1807)   307 

Pope  v.  Halifax,  12  Cush.  410  (1853)   149 

Portage  Co.  Supervisors  v.  Wis.  Cen.  R.  R.  Co.,  121  Mass.  460  (1877)  105 
Porter  v.  Norfolk  County  Commissioners,  5  Gray  365  (1855)  261,  288,  289,  296 
Portland  Bank  v.  Apthorp,  12  Mass.  252  (1815)  14,  89,  92,  96,  97,  98,  100,  506,  529 

Postal  Tel.  Cable  Co.  v.  Adams,  155  U.  S.  688  (1895)    44,  45 

Postal  Tel.  Cable  Co.  v.  Baltimore,  156  U.  S.  210  (1895)   34 

Postal  Tel.  Cable  Co.  v.  Charleston,  153  U.  S.  692   (1894)    39 

Postal  Tel.  Cable  Co.  v.  Chicopee,  207  Mass.  341   (1911)   9,  34 

Postal  Tel.  Cable  Co.  v.  Fremont,  255  U.  S.  124  (1921)   42 

Postal  Tel.  Cable  Co.  v.  Taylor,  192  U.  S.  64  (1904) 9,  34 

Powers  v.  Radding,  225   Mass.   110   (1916)    360 

Powers  v.  Worcester,  210  Mass.  471  (1912)    58,  192,  290 

Pratt  v.  Street  Commissioners  of  Boston,  139  Mass.  555  (1885)    535 

Preble  v.  Baldwin,  6  Cush.  549  (1850)    744 

Preston  v.  Boston,  12  Pick.  7  (1831)    401,  403,  404,  406 

Prevost  v.  Greeneaux,  19  How.  1   (1856)    32 

Priestley  v.  Treasurer  &  Receiver  General,  230  Mass.  452   (1918)     80,  617,  618 

Prince  v.  Boston,  111   Mass.  226   (1872)    118,  124,  129,  679,  687,  695 

Prince  v.  Boston,  148  Mass.  285   (1889)    149 

Prince  v.  Crocker,  166  Mass.  347  (1896)    105,  114,  149,  150 

Prince  &  Walter,  Re,  131  Fed.  Rep.  546  (1904)    346 

Prout  v.  Pittsfield  Fire  District,  154  Mass.  450   (1891)    163 

Providence  Bank  v.  Billings,  4  Pet.  514   (1830)    27 

Providence    Institution   for   Savings   v.   Boston,    101    Mass.   575    (1869) 

89,  90,  91,  168,  253,  508 
Provident  etc.  Assurance  Society  v.  Kentucky,  239  U.  S.  103  (1915)  ...  69,  84 
Provident  Institution  v.  Massachusetts,  6  Wall.  611    (1867)     13,  48,  49,  53,  517 

Provident  Institution  v.  Jersey  City,  113  U.  S.  506  (1885)   67 

Pullman  Co.  v.  Adams,  189  U.  S.  420   (1903)    42 

Pullman  Co.  v.  Kansas,  216  U.  S.  56  (1910)  41,  42 

Pullman's  Palace  Car  Co.  v.  Pennsylvania,  141  U.  S.  18   (1891)    44,  70,  71,  72 

Putnam   v.  Johnson,   10  Mass.  488   (1913)    222 

Putnam   v.  Middeborough,  209  Mass.  456   (1911)    78 

Quincy  v.  Jackson,  113  U.  S.  332  (1885)   17 

Quinn  v.  Cambridge,  187  Mass.  507  (1905)  ; 677 

Quinn  v.  James,  174  Mass.  23  (1899)   731 

Quinn  v.  Mayor  and  Aldermen  of  Springfield,  233  Mass.  595  (1919)   680 


Ralls  County  Court  v.  United  States,  105  U.  S.  733  (1881) 17,  25 

Rand  v.  Robinson,   11   Cush.  289   (1853)    375,377 


xlvi  Taxation  in  Massachusetts 

[Citations  are  to  Pages] 

Ratterman  v.  Western  Union  Tel.  Co.,  127  U.  S.  411   (1888)    40,  45 

Rawson   v.  Spencer,    113   Mass.   40    (1873)    337,397 

Raymond  v.  Chicago  Traction  Co.,  207  U.  S.  20  (1907)   .'    55 

Raymond  v.  Worcester,  172  Mass.  205   (1898)    237 

Rayner  v.  Commissioner  of  Taxation,  Mass.  (1921)   436,759 

Reardon  v.  New  York,  204  U.  S.   152   (1907) '. . .     74,77 

Rearick  v.  Pennsylvania,  203  U.  S.  507   (1906)    '36 

Red  C.  Oil  Mfg.  Co.  v.  N.  C.  Board  of  Agriculture,  222  U.  S.  380  (1912)  9 

Redemptorist  Fathers   v.   Boston,    129   Mass.    178    (1880)    19,194,206 

Reed  v.  Crapo,  127   Mass.  39   (1879)    357,  359 

Rees  v.  Watertown,  19  Wall.  107   (1873)    15 

Revere  v.  Boston,  123  Mass.  375  (1877)   508 

Reynolds  v.  New  Salem,  6   Met.  340    (1843)    272,281 

Rice  v.  Bradford,  180   Mass.  545    (1902)    620 

Rich  v.  Packard  National  Bank,   138   Mass.  527    (1885)    164,  507,  510 

Rich  v.  Tuckerman,  121  Mass.  222  (1876)   344 

Richardson  v.  Boston,  148  Mass.  508  (1889)   11,  229,  321,  343,  347,  403,  744 

Richardson  v.  Gordon,  188  Mass.  279   (1905)    235 

Richmond  v.  Ames,   164   Mass.  467    (1895)    743 

Richmond  v.  Bird,  249  U.  S.  174   (1918)    67 

Richmond  v.  Southern  etc.  Tel.  Co.,  174  U.  S.  761   (1899)    34 

Ricker  v.  American  Loan  &  Trust  Co.,  140  Mass.  346  (1885)     226,  249,  250,  531 

Ricker  v.  Brooks,  155  Mass.  400   (1892)    342,  345 

Riddle  v.  Proprietors  of  the  Locks  and  Canals,  7  Mass.  169  (1810)   401 

Rising  v.  Granger,   1   Mass.  47    (1804)    321 

Rising  Sun  Street  Lighting  Co.  v.  Boston,  181   Mass.  211    (1902)    243 

Robbins  v.'  Shelby  County  Taxing  District,  120  U.  S.  493  (1887)    35,  39 

Roberts   v.   Welsh,    192    Mass.  278    (1906)    228,276,360 

Robinson  v.  Richardson,  13  Gray  454  (1859)    592 

Rochester  R.  R.  Co.  v.  Rochester,  205  U.  S.  236  (1907)    28 

Rogers  v.  Cambridge,  227  Mass.  378   (1917)    362 

Rogers  v.  French,  214   Mass.  337   (1913)    399 

Rogers  v.  Gookin,   198   Mass.  434    (1908)    310,311,343 

Rogers  v.  Hennepin  County,  240  U.  S.   184    (1916)    57,75,76 

Rogers  v.  Lynn,  200  Mass.  354  (1909)   375,  387 

Rogers  v.  Nichols,  186  Mass.  440   (1904)    68,  378 

Rogers  v.  Rutter,  11  Gray  410   (1858)    , 375,  385 

Rosenblatt  v.  Johnston,  104  U.  S.  462  (1881)  511 

Rossire  v.  Boston,  4  Allen  57  (1862)    : . . . .     218,  227,  230,  335,  408 

Roxbury  v.  Nickerson,  114  Mass.  544  (1874)    685 

Rovall  v.  Virginia,  116  U.  S.  572   (1886)    6 

Rovster  Guano  Co.  v.  Virginia,  253  U.  S,  412  (1920) 54 

Rural  Cemetery  v.  Worcester  Co.  Com'ers.,  152  Mass.  408  (1890) . .     194,  206,  216 

Russell  v.  Deshon,  124  Mass.  342  (1878)    385 

Ryan  v.  Boston,  118  Mass.  248  (1875)    672 

S.  S.  White  Dental  Mfg.  Co.  v.  Commonwealth,  212  Mass.  35   (1912)     41,  563 

Salem  v.  Eastern  R.  R.  Co.,  98  Mass.  431  (1868)   129,  730 

Salem  v.  Lynn,  13  Met.  544  (1847)  225 

Salem  etc.  Bridge  Co.  v.  Essex  Countv,  100  Maas.  282   (1868)    114,  117 

Salem  Iron  Factory  v.  Danvers,  10  Mass.  514   (1813)    ....     56,  57,  93.  208,  530 

Salem  Lyceum  v.  Salem,  154  Mass.  15  (1891)    200 

Salem  Marine  Society  v.  Salem,  155  Mass.  329  (1892)    201,  205 

Salisbury  Beach  Associates  v.  Assessors  of  Salisbury,  225  Mass.  399  (1917)     310 

Salisburv  Beach  Associates  v.  Behan,  Land  Court  (1920)    372 

Salmond  v.  Hanover,  13  Allen   119   (I860)    403 


Table  of  Cases  xlvii 

[Citations  are  to  Pages] 

San  Francisco  National  Bank  v.  Dodge;  197  U.  S.  70  (1905)    509 

Sands  v.  Manistee  River  Imp.  Co.,  123  U.  S.  288  (18S7) 5 

Sandwich  v.  Fish,  2  Gray  298   (1854)    273,  326,  327 

Sanford  v.  Sanford,  135  Mass.  314  (1883)    354 

Santa  Clara  County  v.  Southern  Pacific  R.  R.  Co.,  118  U.  S.  394  (1886)   ....     60 

Sargent   v.  Bean,   7   Gray    125    (1856)    227,333 

Sargent  v.  Herrick,  221  U.  S.  404   (1911)    47 

Sargent  v.  Pray,  117  Mass.  267  (1875)    234,  235 

Sault  Ste.  Marie  v.  International  Transit  Co.,  234  U.  S.  333  (1914)    39 

Savage  v.  Jones,  225  U.  S.  501  (1912)    9 

Savannah  etc.  R.  R.  Co.  v.  Savannah,  198  U.  S.  392   (1905)    27,  53 

Savary  v.  School  District  in  Georgetown,  4  Gray  254  (1878)   164 

Savings  etc.  Society  v.  Multnomah  County,  169  U.  S.  421    (1898)    ....     75,  76 

Sawyer  v.  Mackie,  149  Mass.  269  (1889)    228,  237 

Saxton  r.  Nimms,  14  Mass.  315  (1817) 315 

Savles  v.  Pittsfield  Board  of  Public  Works,  222  Mass.  93  (1915)   123,  126 

Scholey   v.  Rew,  23   Wall.  331    (1874)    13 

Schwartz  v.  Boston,   151   Mass.  226   (1890)    277.312,349,403 

Scituate  v.  Weymouth,  108  Mass.  128  (1871)    114,  117 

Scollard  v.  American  Felt  Co.,  194  Mass.  127  (1907)   71,  85,  395,  561 

Scollard  v.  Edwards,  194  Mass.  77   (1907)    345 

Scottish  Union  etc.  Ins.  Co.  v.  Bowland,  196  U.  S.  611  (1905)  ..  49.  68,  74,  76 
Sears  v.  Aldermen  of  Boston,  173  Mass.  71  (1899)  105,  122,  125,  126,  145,  691,  714 
Sears  v.  Assessors  of  Nahant,  205  Mass.  558  (1910) 

266,  288,  296,  297,  298,  306,  499 

Sears  v.  Assessors  of  Nahant,  208  Ma«s.  208   (1911)    64.  298,  410 

Sears  v.  Boston,  1   Met.  250   (1840)    223 

Sears  v.  Mayor  and  Aldermen  of  Worcester,  180  Mass.  288   (1902)    688 

Sears  v.  Nahant,  215  Mass.  329   (1913)    ...     78,  156,  245,  246,  262.  290,  300,  305 

Sears  v.  Nahant,  221    Mass.  435   (1915)    336,404 

Sears  v.  Nahant,  221    Mass.  437    (1915)    64.  260,  290,  291 

Sears  v.  Nahant,  248  U.  S.  542   (1918)    64 

Sears  v.  Street  Com.  of  Boston,  173  Mass.  350  (1899)  ..  122,  125,  128,  712,  713 
Sears  v.  Street  Commissioners  of  Boston,  180  Mass.  274  (1902) 

105,  120,  122,  123,  124,  125,  674,  680 

Seattle  v.  Kelleher,   195  U.  S.  356    (1904)    124 

Security  Trust  etc.  Co.  v.  Lexington,  203  U.  S.  323  (1906)    60,  61,  62 

Seibert  v.  Lewis,  122  U.  S.  284  (1877)    25 

Selliger  v.  Kentucky,  213  U.  S.  200  (1909)    73 

Seton  Hall  College  v.  South  Orange,  242  U.  S.  100  (1916)    27 

Sewall  v.  Jones,  9  Pick.  412  (1830)    18 

Seward  v.  Revere  Water  Co.,  201  Mass.  453  (1909)    149 

Sexton  v.  North  Bridgewater,  1 16  Mass.  200  (1874)   671,  672 

Shaffer  v.  Carter,  252  U.  S.  37    (1920)    4,  46,  84,  85,  434 

Shaw  v.  Becket,  7  Cush.  442   (1851)    401,  408 

Sheehan   v.  Fitchburg,   131    Mass.  523    (1881)    CS7,  689,  690 

Sherman  v.  Tobey,  3  Allen  7  (1871)    753 

Sherman  v.  Torrey,  99  Mass.  472   (1868)    158,  341,  397,  398 

Sherwin  v.  Boston  Five  Cents  Sav.  Bk.  137  Mass.  444  (1884)     321,  343,  347,  351 

Sherwin  v.  Wigglesworth.  129  Mass.  64  (1880)     47 

Shields  v.  Ohio,  95  U.  S.  319  (1877)    29 

Shotwell  v.  Moore,  129  U.  S.  590  (1889)   49 

Shurtleff  v.  Potter,   206   Mass.   286    (1910)    329,353,356 

Silva  v.  Turner,  166  Mass.  407  (1896)   369,  370 

Simonds  v.  Towne,  4  Grav  603  (1855)   385 

Simonds  v.  Turner,  120  Mass.  328  (1876)   119,  698 


xlviii  Taxation  in  Massachusetts 

[Citations  are  to  Pages] 

Simplex  Electric  Heating  Co.  v.  Commonwealth,  227  Mass.  225  (1917)     542,  543 

Sinclair  v.  Mayor  of  Fall  River,  198  Mass.  248  (1908)    5 

Singer  Mfg.  Co.  v.  Essex  County  Commissioners,  139  Mass.  266  (1885) 561 

Sinnot    v.   Davenport,   22    How.   239    (1859) 35 

Sioux  City  St.  Ry.  Co.  v.  Sioux  City,  138  U.  S.  98  (1891)    29 

Skilton  v.  Roberts,  129  Mass.  306   (1880)    370 

Slaughter  House  Cases,  16  Wall.  97   (1872)    38 

Sleeper  v.  Nicholson,  201   Mass.  110   (1909)    745 

Sleeper  v.  Paige,  15  Gray  349  (1860)    223 

Slocum   v.  Boston,   129  Mass.  567    (1880)    362 

Slocum  v.  Brookline,  163  Mass.  23  (1895)    716 

Smith  v.  Abington  Savings  Bank,  165  Mass.  285  (1896)    119,  745 

Smith  v.  Abington  Savings  Bank,  171  Mass.  178  (1898)     703,  710,  716,  743,  746 

Smith  v.  Alabama,  124  U.  S.  465  (1888)    9 

Smith   v.  Boston,   194   Mass.  31    (1907)    127,  405,  687,  689,  690,  701,  713 

Smith   v.  Carney,   127   Mass.   179    (1879)    692,  747 

Smith  v.  Gloucester,  201   Mass.  329  (1909)    5 

Smith  v.  Kansas  City  Title  &  Trust  Co.,  255  U.  S.  180  (1921)    49 

Smith  v.  Keniston,  100  Mass.  172  (1868)   158,  394,  398 

Smith  v.  Lincoln,  170  Mass.  488  (1898)    103 

Smith  v.  Mayor  and  Aldermen  of  Worcester,  182  Mass.  232  (1902)     125,  126,  709 

Smith  v.  Northampton  Bank,  4  Cush.  1   (1849)    243 

Smith  v.  Smith,  150  Mass.  73   (1889)    385,  386 

Smith  v.  Turner,  7  How.  412  (1849)    36 

Snow  v.  Clark,  9  Grav  190  (1857)    339 

Snow  v.  Fitchburg,  136  Mass.  179  (1883)    126,  686,  694,  709 

Snow  v.  Rice,  207  Mass.  331    (1911)    698,  699 

Snyder  v.  Bettman,  190  U.  S.  249  (1903)    608 

Society  for  Savings  v.  Coite,  6  Wall.  594  (1867)    36,  49 

Sohier  v.  Eldredge,  108  Mass.  345  (1869)    636 

Soliah  v.  Heskin,  222  U.  S.  522    (1912)    17 

Solis   v.  Williams,  205   Mass.   350    (1910)    68,  228,  357,  384,  385 

Somerville  v.  Dickerman,  127  Mass.  272  (1879)   118,  668 

Somerville  v.  Waltham,  170  Mass.  160  (1898;   ! 217 

South  Congregational  Meeting  House  v.  Lowell,  1  Met.  538  (1840)    205 

Southampton  v.  Easthampton,  8  Pick.  380  (1829)    188 

Southern  Pacific  Co.  v.  Kentucky,  222  U.  S.  63  (1911)    72,  590 

Southern  Ry.  Co.  v.  Greene,  216  U.  S.  400  (1910)    43,  54 

Southern  Steamship  Co.  v.  Portwardens,  6  Wall.  31   (1867)    23,  24 

Southwestern  Oil  Co.  v.  Texas,  217  U.  S.  114  (1910)   53 

South  worth  v.  Edmands,  152  Mass.  203   (1890)    229,349,355,367 

Spauding  v.  Lowell,  23  Pick.  71  (1839)   103,  104,  106,  112 

Spaulding  v.  Peabody,  153  Mass.  129  (1891)    104,  112 

Spencer  v.  Jones,  6  Grav  502  ( 1856)  151 

Spencer  v.  Merchant,  125  U.  S.  345  (1888)    15,  60,  65 

Spinney   v.  Lynn,  172   Mass.  464   (1899)    71,189,404 

Sprague  v.  Bailev,  19  Pick.  436  (1837)    154,  252,  272,  397,  405 

Spreckels  Sugar  Refining  Co.  v.  McClain,  192  U.  S.  397  (1904)   14 

Spring  v.  Cambridge,  199  Mass.   1    (1908)    360,361 

Spring  v.  Cambridge,  212  Mass.  296  (1912)    362 

Springer  v.  United  States,  102  U.  S.  586  (1880)    13,  14,  66 

Springfield  v.  Gav,  12  Allen  612  (1866)    125,  709 

Springfield  v.  Springfield  St,  Ry.  Co.,  182  Mass.  41   (1902)    588 

St.  Clair  County  v.  Interstate  etc.  Transfer  Co.,  192  U.  S.  454  (1904)   35 

St.  James  Educational  Institute  v.  Salem.  153  Mass.  185   (1891)    ....     199,  403 
St.  Louis  v.  United  R.  R.  Co.,  210  U.  S.  266  (1908)   27 


Table  of  Cases  xlix 

[Citations  are  to  Pages] 

St.  Louis  v.  Western  Union  Tel.  Co.,  148  U.  S.  92  (1893)    5,  34 

St.  Louis  v.  Western  Union  Tel.  Co.,  149  U.  S.  465  (1893)   34 

St.  Louis  etc.  R.  R.  Co.  v.  Berry,  113  U.  S.  465  (1885)   29 

St.  Louis  etc.  Ry.  Co.  v.  Missouri,  U.  S.  (1921)    44,  70 

St.  Louis  Southwestern  R.  R.  Co.  v.  Arkansas,  235  U.  S.  350  (1914)     4,  42,  55,  57 

St.  Paul  etc.  R.  R.  Co.  v.  Todd  County,  142  U.  S.  282  (1892)    30 

Standard  Oil  Co.  v.  Graves,  249  U.  S.  389  (1919)    35 

Stanton  v.  Baltic  Mining  Co.,  240  U.  S.  103  (1916)    14 

Stark  v.  Boston,   180   Mass.  293    (1902)    122,  125,  127,  128,  146,  404 

State  v.  Stoll,  17  Wall.  425  (1873)    24 

State  Board  of.  Assessors  v.  Comptoir  Nationale  D'Escompte,   191  U.  S. 

388    (1903) 74,76 

State  Freight  Tax  Case,  15  Wall.  232   (1872)    34 

State  Railroad  Tax  Cases,  92  U.  S.  575  (1875)    53,  63,  70 

State  St.  Trust  Co.  v.  Treasurer  &  Receiver  General,  209  Mass.  373  (1911)     615 

State  Tax  on  Foreign  Held  Bonds,  15  Wall.  300  (1872)    3.  69,  74,  75,  76 

State  Tonnage  Tax  Cases,  12  Wall.  204   (1870)    23,  590 

Stearns  v.  Brookline,  219  Mass.  238   (1914)    249 

Stearns  v.  Minnesota,  179  U.  S.  223  (1900)    26 

Steele  v.  Municipal  Signal  Co.,  160  Mass.  36   (1894)    150 

Stetson  v.  Kempton,  13  Mass.  271    (1816)    112,  147,  314,  315,  400 

Stevens  v.  Bradford,  185  Mass.  439  (1904)    630,  661 

Stevens  v.  Cohen,  170  Mass.  551   (1898)    369,  370 

Stinson  v.  Boston,  125  Mass.  348  (1878)   250 

Stinson  v.  Crosby,  180  Mass.  296  (1902)    235 

Stockard  v.  Morgan,  185  U.  S.  37  (1902)   36,  39 

Stone  v.  Littlefield,  151  Mass.  485  (1890)    236 

Stone  v.  New  England  Box  Co.,  216  Mass.  8  (1913)   227 

Stone  v.  Street  Commissioners  of  Boston,  192  Mass.  297  (1906)    124 

Stone  v.  Tax  Commissioner,  235  Mass.  93  (1920)    457 

Stoughton  v.  Cambridge,  165  Mass.  251  (1896)   222,  223 

Stoutenburgh  v.  Hennick,  129  U.  S.  141   (1889)    17 

Stryker  v.  Goodnow,  123  U.  S.  527  (1887)  47 

Sturgis  v.  Carter,  114  U.  S.  511  (1885)   65,  76 

Sudbury  v.  Heard,  103  Mass.  543  (1870)   155,  272,  343 

Suffolk  Savings  Bank,  Petitioner,  149  Mass.  1   (1889)    56,  517 

Suffolk  Savings  Bank,  Petitioner,  151  Mass.  103  (1890)    516 

Sullivan  v.  Ashfield,  227  Mass.  24  (1917)    19,  194,  211,  223,  240,  403 

Sullivan  v.  Boston,  198  Mass.  119  (1908)   229,  232,  264,  349,  403,  405 

Sullivan  v.  Kidd,  254  U.  S.  533  (1921)   32 

Sullivan  v.  Mandell,  212  Mass.   174   (1912)    713,  714,  746 

Summer  v.  First  Parish  in  Dorchester,  4  Pick.  361  (1826)   401 

Sunday  Lake  Iron  Co.  v.  Wakefield,  247  U.  S.  350  (1918)   54 

Sunderland  Bridge  Case,  122  Mass.  459  (1877)    114 

Susquehanna  Coal  Co.  v.  South  Amboy,  228  U.  S.  665  (1913)    44 

Swan  v.  Emerson,  129  Mass.  289  (1880)   369,  370,  371,  744 

Swarts  v.  Hammer,  194  U.  S.  441   (1904)    50,  346 

Sweetser  v.  Hay,  2  Gray  49  (1854)   327 

Sweetser  v.  Manning,  200  Mass.  378  (1909)    193,  206,  231,  441 

Swett  v.  Boston,  18  Pick.  123  (1836)   19 

Swigart  v.  Baker,  229  U.  S.  187  (1913)   122 

Sylvester  v.  Webb,  179  Mass.  236  (1901)    150 

Taber   v.   New   Bedford,   135   Mass.    162    (1883)    687,688,689 

Taft  v .  Montague,  14  Mass.  281   (1817)   401 

Taintor  v.  Mayor  &  Aldermen  of  Cambridge,  197  Mass.  412  (1908)   683 


1  Taxation  in  Massachusetts 

[Citations  are  to  Pages] 

Talbot .  v.  Hudson,  16  Gray  417  (1860)    103,  752 

Talbot  v.  Janson,  3  Dall.  133  ( 1795)    15 

Talbott  v.  Silver  Bow  County,  139  U.  S.  438  (1891)   508 

Tappan  v.  Street  Commissioners  of  Boston,  193  Mass.  498  (1907)    713 

Tash  v.  Adams,  10  Gush.  252   (1852)    112,  149 

Tax  Commissioner  v.  Putnam,  227   Mass.  522    (1917) 

14,  434,  435,  442,  443,  447,  455,  456,  472,  488 
Taylor  v.  Mayor  and  Aldermen  of  Haverhill,  192  Mass.  287  (1906)    ..     715,  717 

Tennessee  v.  Whitworth,  117  U.  S.  129   (1886)    28,  56 

Thayer  v.  Boston,  19  Pick.  511   (1837)    401 

Thayer  v.  Boston,  124  Mass.  132   (1878)    222.  223,  224,  319 

Thayer  v.  Boston,  206  Fed.  Rep.  969  (1913)    131 

Thayer  v.  Stearns,  1  Pick.  109  (1822)   315 

Thayer  Academy  v.  Braintree,  232  Mass.  402  (1919)  . .     200,  202,  298,  3C0,  407,  408 
Third  Congregational  Soc.  v.  Springfield,  147  Mass.  396  (1888)     19,  194,  205,  230 

Thomas  v.  Gay,  169  U.  S.  264  (1898)   44,  47,  113 

Thomas  v.  United  States,  192  U.  S.  363  (1902)    13,  14 

Thompson  v.  Allen  County,  115  U.  S.  550  (1885)    410 

Thomson  v.  Union  Pacific  R.  R.  Co.,  9  Wall.  579  (1869) 51 

Thorndike   v.  Boston,  1   Met.  242    (1840)    223,  225 

Tibbets  v.  Leeson,  148  Mass.  102  (1888)    743,  744 

Tileston  v.  Street  Commissioners  of  Boston,  182  Mass.  325   (1902)    ..     687,  691 

Tilson  v.  Thompson,  10  Pick.  359  (1835)    360,  377 

Tilton  v.  Tax  Commissioner,  Mass.  (1921)    442 

Tippecanoe  Countv  Commissioners  v.  Lucas,  93  U.  S.  108  (1876) 115 

Tobey  v.  Kip,  214"  Mass.  477  (1913)    240,  344 

Tobey  v.  Wareham,  2  Allen  594  (1861)    266,  272,  273,  277,  405 

Tobin   v.  Gillespie,   152  Mass.  219    (1890)    237 

Todd  v.  Lunt,  148  Mass.  322  (1889)    360 

Tomlinson  v.  Branch,  15  Wall.  460  (1872)    28 

Tomlinson  v.  Jessup,  15  Wall.  454  (1872)    27,  29 

Torrey  v.  Millbury,  21  Pick.  64  (1838)    272,  311,  405 

Torrey  v.  Wallis,  3  Cush.  442    (1849)    685,  698,  699 

Towne  v.  Eisner,  245  U.  S.  418   (1918)    443 

Townsend   v.   Wallcutt,   3   Met.    152    (1841)    340 

Transportation  Co.  v.  Wheeling,  99  U.  S.  273  (1878)    15 

Trask  v.  Maguire,  18  Wall.  391  (1873)   28,  30 

Travellers'  Insurance  Co.  v.  Connecticut,  185  U.  S.  371   (1902)    31 

Travis  v.  Yale  &  Towne  Mfg  Co.,  252  U.  S.  60  (1920)   r 85,  434 

Treadwell  v.  Boston,  123  Mass.  23  (1877)    695 

Treat  v.  White,  181  U.  S.  264  (1901)    14 

Tremont  Bank  v.  Boston,  1  Cush.  142  (1848) 57,  228,  506,  530 

Tremont  &  Suffolk  Mills  v.  Lowell,  163  Mass.  283  (1895)   90,  191,  268 

Tremont  &  Suffolk  Mills  v.  Lowell,  165    Mass.  265  (1896)   69,  300,  301 

Tremont  &  Suffolk  Mills  v.  Lowell,  178  Mass.  469  (1901)  295,  581,  583 

Trinity  Church  v.  Boston,  118  Mass.  164  (1875)    206 

Troy  Cotton  and  Woolen  Manufactory  v.  Fall  River,  167  Mass.  517  (1897) 

241,  242,  243,  260,  268,  290 

Trov  Union  R.  R.  Co,  v.  Mealy,  254  U.  S.  47  (1920)   27 

Troy  &  Greenfield  R.  R.  Co.  v.  Commonwealth,  127  Mass.  43  (1879)....       105 
Trustees  of  the  Greene  Foundation  v.  Boston,  12  Cush.  54  (1853) 

199,  205,  230,  333,  531 
Trustees  of  Ministerial  Fund  v.  Gloucester,  19  Pick.  542   (1837)    ....     205,  230 

Tucker  v.  Deshon,  129  Mass.  566  (1880)   228 

Tucker  v.  Ferguson,  22  Wall.  527    (1874)    27 

Tufts  v.  Charlestown,  98  Mass.  583  (1868)    722 


Table  of  Cases  li 

[Citations  are  to  Pages] 

Tufts  v.  Mayor  and  Aldermen  of  Somerville,  122  Mass.  273  (1877)   706 

Turner  v.  Maryland,  107  U.  S.  38  (1882)    22 

Turner  v.  Nye,  154  Mass.  579   (1891)    752 

Turner  v.  Smith,  14  Wall.  553  (1871)    67 

Turner  v.  Wade,  254  U.  S.  64  (1920)   60,  62 

Twin  City  Bank  v.  Nebeker,  167  U.  S.  196  (1897)   101 

Twycross  v.  Fitchburg  R.  R.  Co.,  10  Gray  293  (1858)   685,  698 

Tyler  v.  Hardwick,  6  Met.  470  (1843)   333 

Tyler  v.  Treasurer  &  Receiver  General,  226  Mass.  306  (1917)   18,  20,  615 

Tyler,  in  re,  149  U.  S.  164  (1893)  346 

Underwood  Typewriter  Co.  v.  Chamberlain,  254  U.  S.  113  (1920)  ....     46,  85,  434 

Union  Glass  Co.  v.  Somerville,  228  Mass.  202   (1917) 553 

Union  Pacific  R.  R.  Co.  v.  McShane,  22  Wall.  444  (1874)    47 

Union  Pacific  R.  R.  Co.  v.  Peniston,  18  Wall.  5  (1873)   51 

Union  Passenger  R.  R.  Co.  v.  Philadelphia,  101  U.  S.  528  (1879)    29 

Union  Refrigerator  Transit  Co.  v.  Lynch,  177  U.  S.  149  (1900)   44 

Union  Refrigerator  Transit  Co.  v.  Kentucky,  199  U.  S.  194  (1905) 

37,  64,  70,  72,  74,  76 

Union  Tank  Line  Co.  v.  Wright,  249  U.  S.  275  (1918)   70,  72 

Union  Trust  Co.  v.  Reed,  213  Mass.  199  (1912)    375,  385 

United  States  v.  Chamberlain,  219  U.  S.  250  (1911)   •. . .         11 

United  States  v.  Emery,  Bird,  Thayer  Realty  Co.,  237  U.  S.  28  (1915)  . .     14,  550 

United  States  v.  Erie  R.  R.  Co.,  107  U.  S.  1  (1882)   : 59 

United  States  v.  Fisher,  2  Cranch  258  (1804)  52 

United  States  v.  Macon  County,  99  U.  S.  582  (1878)   15 

United  States  v.  New  Orleans,  98  U.  S.  381    (1878)    17 

United  States  v.  Perkins,  163  U.  S.  625   (1896)    13.  608 

United  States  v.  Philadelphia  etc.  R.  R.  Co.,  123  U.  S.  113  (1887)    ....     11,  59 
United  States  v.  Philadelphia  Knitting  Mills  Co.,  C.  C.  A.  Third  Circuit, 

March,    1921     443 

United  States  v.  Snyder,  149  U.  S.  210  (1893)    15,  52 

United  States  Drainage  etc.,  Co.  v.  Medford,  225  Mass.  467  (1917)    731 

United  States  Express  Co.  v.  Minnesota,  223  U.  S.  335  (1912)   37,  45 

United  States  Glue  Co.  v.  Oak  Creek,  247    U.  S.  321   (1918)    ..     45,  46,  84,  434 

Upham  v.  Worcester,  113  Mass.  97  (1873)   122,  123,  673,  674,  679 

Upton  v.  Holden,  5  Met.  360  (1842)    397,  753 

Van  Allen  v.  Assessors,  3  Wall.  573  (1865)    48,  51,  507,  510 

Van  Brocklin  v.  Tennessee,  117  U.  S.  153  (1886) 47 

Vaughn  v.  Street  Commissioners  of  Boston,  154  Mass.  143  (1891)   260,  289 

Veazie  Bank  v.  Fenno,  8  Wall.  533  (1869)   8,  13,  506 

Vicksburg  etc.  R.  R.  Co.  v.  Dennis,  116  U.  S.  231   (1886)    • 28 

Viles  v.  Waltham,  157   Mass.  542    (1893) 222,  225 

Von  Baumbach  v.  Sargent  Land  Co.  242  U.  S.  503  (1917)    550 

Von  Hoffman  v.  Quincy,  4  Wall.  535  (1866)    25 

Wagner  v.  Covington,  251  U.  S.  95  (1919)    4,  14,  35 

Wagner  v.  Leser,  239  U.  S.  207  (1915)   66 

Wagoner  v.,  Evans,  170  U.  S.  588  (1898)    47 

Waite  v.  Dowley,  94  U.  S.  527  (1876)    512 

Waite  v.  Worcester  Brewing  Co.,  176  Mass.  283  (1900)  322,  345,  749 

Walker  v.  Cook,  129  Mass.  577   (1880)    317 

Walker  v.  treasurer  &  Receiver  General,  221  Mass.  600  (1915).  r     69,  82,  83,  623 

Walker  v.  Whitehead,   16  Wall.  314    (1872)    66 

Walker  v.  Whittemore,  112  Mass.  187  (1873)   119,  233,  698,  699 


lii  Taxation  in  Massachusetts 

[Citations  are  to  Pages] 

Wall  v.  Hinds,  4  Gray  256  (1855)  234 

Wall  u.  Wall,  124  Mass.  65  (1878)    354,  355,  377 

Wallace  v.  Hines,  253  U.  S.  66  (1920)   70,  71 

Walling  v.  Michigan,  116  U.  S.  455  (1886)   43 

Walsh  v.  Wilson,  130  Mass.  124  (1881)    357,  370,  387 

Waltham  Bank  v.  Waltham,  10  Met.  334  (1845)   251,  506,  531 

Ward  v.  Aldermen  of  Newton,  181  Mass.  432  (1902)   146,  688,  691 

Ward  v.  Maryland,  12  Wall.  424  (1870)  30 

Ware  v.  Hylton,  3  Dall.  199  (1796)    15 

Waring  v.  Mobile,  8  Wall.  110   (1868)    21 

Warr  v.  Collector  of  Taunton,  234  Mass.  279  (1920)   336,  343,  398,  409 

Warren  v.  Street  Commissioners,  181   Mass.  6   (1902)    691 

Warren  v.  Street  Commissioners,  183  Mass.  119   (1903)    687,688 

Warren  v.  Street  Commissioners,  187  Mass.  290  (1905)    124,  681 

Washburn  v.  Walworth,  133  Mass.  499   (1882)    249 

Washington  University  v.  Rouse,  8  Wall.  430  (1869)    26 

Waters  v.  Bonvouloir,   172  Mass.  286   (1899)    112 

Watertown  v.  Middlesex  County  Commissioners,  176  Mass.  22  (1900)   705 

Watson  v.  Boston,  209  Mass.  18  (1911)   201,  473 

Watson  v.  Needham,  161   Mass.  404   (1894)    106 

Watson  v.  Nevin,  128  U.  S.  578  (1888)   62 

Watson  v.  New  York,  254  U.  S.  122   (1920) 53,  608 

Watson  v.  Princeton,  4  Met.  599  (1842)   403 

Watts  v.  Howard,  7  Met.  478  (1844)   236 

Watuppa  Reservoir  Co.  v.  Mackenzie,  132  Mass.  71  (1882)   731 

Wavland  v.  Middlesex  County  Commissioners,  4  Gray  500  (1855)....     217,  218 

Webber  v.  Virginia.  103  U.  S.  344  (1880)    43,  51 

Webber  Lumber  Co.  v.  Shaw,  189  Mass.  366  (1905)  227,  386,  409,  744 

Webster  v.  Lowell,  139  Mass.  172   (1885)    696 

Webster  v.  Fargo,  181  U.  S.  395  (1901)    116 

Weed  v.  Boston,  172  Mass.  28  (1898)   125,  128,  686,  687,  709, 711,  714 

Weeks  v.  Grace,  194  Mass.  296  (1907) 67,  350 

Welch  v.  Boston,  208  Mass.  326  (1911)    225,  409 

Welch  v.  Boston,  211  Mass.  178  (1912)   246,  285,  290 

Welch  v.  Boston,  221   Mass.  155   (1915)    74,  79,  238 

Welch  v.  Cook,  97  U.  S.  541   (1878) 27 

Welch  v.  Emerson,  206  Mass.  129  (1910)    148,  149,  317 

Welch  v.  Halev,  224  Mass.  261  (1916)   359,  360 

Welch  v.  Phillips,  224  Mass.  267  (1916)   234 

Welch  v.  St.  Genevieve,  1  Dill.  130  (1871)    410 

Welch  v.  Treasurer  &  Receiver  General,  217  Mass.  348  (1914)    661 

Welch  v.  Treas.  d  Receiver  General,  223  Mass.  87  (1916)   ..     56,  76,  77,  82,  618 

Weld  v.  Boston,  126  Mass.  166  (1879)    224,  225 

Wellington  v.  Belmont,  164  Mass.  142   (1895)    242,  403 

Wellington  v.  Boston  &  Maine  Railroad,  158  'Mass.  185  (1893)    350 

Wellington  v.  Boston  &  Maine  Railroad,  164  Mass.  380  (1895)   350 

Wellington  First  National  Bank  v.  Chapman,  173  U.  S.  205  (1899)    508 

Wells,  Fargo  &  Co.  v.  Johnson,  239  U.  S.  234  (1915)   55 

Wells,  Fargo  &  Co.  v.  Nevada,  248  U.  S.  165  (1918)   62,  71 

Welsh  v.  Briggs,  204  Mass.  540  (1910)    228,  252,  349,  357,  360,  364 

Welton  v.  Missouri,  91  U.  S.  275  (1875)   '• 43 

Wendell  v.  Fleming,  8    Gray  613  (1857) 326,  327 

Wesleyan  Academy  v.  Wilbraham,  99  Mass.  599  (1868)    200 

West  Roxburv  v.  Minot,  114  Mass.  546  (1874)   685 

West  Wisconsin  R.  R.  Co.  v.  Trempealeau  Countv,  93  U.  S.  595  (1876)   . .         27 
Western  Union  Tel.  Co.  v.  Andrews,  216  U.  S.  165  (1910)   42 


Table  of  Cases  liii 

[Citations  are  to  Pages] 

Western  Union  Tel.  Co.  v.  Indiana,  165  U.  S.  304  (1897)  66,  68 

Western  Union  Tel.  Co.  v.  Kansas,  216  U.  S.  1  (1910)   39,  40,  41,  42 

Western  Union  Tel.  Co.  v.  Mass,  125  U.  S.  530  (1887)     41,  45,  50,  51,  70,  579,  596 

Western  Union  Tel.  Co.  v.  Missouri,  190  U.  S.  412  (1903)   70 

Western  Union  Tel.  Co.  v.  New  Hope,  187  U.  S.  419  (1903)   9,  34 

Western  Union  Tel.  Co,  v.  Seay,  132  U.  S.  472  (1889)  45 

Western  Union  Tel.  Co.  v.  Taggart,  163  U.  S.  1  (1896)  70,  71 

Western  Union  Tel.  Co.  v.  Texas,  105  U.  S.  464  (1881)  51 

Westhampton  v.  Searle,  127  Mass.  502  (1879)  272,  275,  281,  282  333,  349,  398,  405 

Weston  v.  Charleston,  2  Pet.  449  (1829)  48 

Weyerhauser  v.  Minnesota,  176  U.  S.  550  (1900)    60,  62,  65 

Wheatland  v.  Boston,  202  Mass.  258  (1909)   118,  119,  407,  408,  690 

Wheaton  College  v.  Norton,  232  Mass.  141   (1919)   200,  201,  202 

Wheeler  v.  Sohmer,  233  U.  S.  434  (1914)    74,  78,  81 

Wheeler  v.  Wall,  6  Allen  558.  (1863)   91,  190 

Wheeling  Transportation  Co.,  v.  Wheeling,  99  U.  S.  283  (1878)   23 

Wheelock  v.  Lowell,  196  Mass.  220  (1907)   103,  104,  107 

Wheelwright  v.  Boston,  188  Mass.  521   (1905)    » 102 

Wheelwright  v.  Tax  Commissioner,  235  Mass.  584  (1920)   19 

Whitbeck  v.  Mercantile  National. Bank,  127  U.  S.  193  (1888)   509 

Whitcomb  v.  Boston,  192  Mass.  211  (1906)   668 

White  v.  Blanchard  Bros.  Granite  Co.,  178  Mass.  363  (1901)   103 

White  v.  Gove,  183  Mass.  333  (1903)    89,  118,  126,  127,  385,  711 

White  v.  New  Bedford,  160  Mass.  217  (1893)   '. 261,  293 

Whiting  v.  Mayor  and  Aldermen  of  Boston,  106  Mass.  89  (1870) 

409,  677,  687,  688,  691,  695 

Whitman  v.  Boston  &  Maine  R.  R.,  7  Allen  313  (1863)   673 

Whitney  v.  Sherborn,  12  Allen  111  (1866)   222 

Whitney  v.  Tax  Commissioner,  234  Mass.  188  (1919)    651,  653 

Whiton  v.  Balch,  203  Mass.  576  (1909)   345 

Whittaker  v.  Salem,  216  Mass.  483  (1914)  107,  109 

Widersum  v.  Bender,  172  Mass.  436  (1899) 384 

Wiggins  Ferry  Co.  v.  St.  Louis,  107  U.  S.  361  (1882)   23,  28,  37 

Wilbraham  v.  Ludlow,  99  Mass.  587  (1868)    222 

Wilcox  v.  Middlesex  County  Commissioners,  103  Mass.  544  (1870)   454 

Wilder  v.  Tax  Commissioner,  234  Mass.  470  ( 1919)   442 

Wilkinson  v.  Libbey,  1  Allen  375   (1861)    234 

Willard  v.  Newburyport,  12  Pick.  227  (1831)   104 

Williams  v.  Acton,  219  Mass.  520  (1914)   245,  401,  404 

Williams  v.  Albany,  122  U.  S.  154  (1887) 65 

Williams  v.  Baker,  209  Mass.  92  (1911)   362 

Williams  v.  Boston,  208  Mass.  497   (1911)    189,  192,  201,  249,  250 

Williams  v.  Bowers,  197  Mass.  565  (1908)    ' 353 

Williams  v.  Brookline,  194  Mass.  44  (1907) 55,  57,  249 

Williams  v.  Dedham,  207  Mass.  412  (1911)   361 

Williams  v.  Eggleston,  170  U.  S.  304  (1898)  60,  117 

Williams  v.  Fears,  179  U.  S.  274  (1900)   30,  33 

Williams  v.  Milton,  215  Mass  1   (1913)    249 

Williams  v.  Monk,  179  Mass.  22  (1901) 119,  745 

Williams  v.  Roxbury,  12  Gray  21   (1858)    224 

Williams  v.  Talladega,  226  U.  S.  404   (1912) 47,  51 

Williams  College  v.  Williamstown,  167  Mass.  505  (1897)    '. 200 

Williams  College  v.  Williamstown,  219  Mass.  46  (1914)  117,  163,  164 

Williamson  v.  New  Jersey,  130  U.  S.  189  (1889)    18 

Williamstown  v.  Willis,  15  Gray  427  (1860)    341.397 


liv  Taxation  in  Massachusetts 

[Citations  are  to  Pages] 

Williston  Seminary  v.  Hampshire  Co.  Com'rs,  147  Mass.  427  (1888)   201 

Wilmington  etc.  R.  R.  Co.  v.  Reid,  13  Wall.  264  (1871)  26 

Wilson  v.  Gaines,  103  U.  S.  417  (1880)   28 

Wilson  v.  Shearer,  9  Met.  504  (1845)   336,  398 

Wilson  v.  Terry,  9  Allen  214  (1864)   223,  224^  225 

Wilson  v.  United  States,  221  U.  S.  361  (1911)   '592 

Winnisimmet  Co.  v.  Assr's  of  Chelsea,  6  Cush.  477  (1850)    250,  266,  288,  289,  290 

Winona  etc.  Land  Co  v.  Minnesota,  159  U.  S.  526  (1895)    59,  62,  65 

Winthrop  v.  Soule,  175  Mass.  400   (1900)    327 

Wisconsin  v.  Pelican  Insurance  Co.  127  U.  S.  265  (1888)    32,  86 

Wisconsin  etc.  R.  R.  Co.  v.  Powers,  191  U.  S.  379  (1903)   27,  70 

Wisconsin  Central  R.  R.  Co.  v.  Price  County,  133  U.  S.  496  (1889)   47 

Witherell  v.  Ruecking  Construction  Co.,  249  U.  S.  63  (1919)    125 

Witherspoon  v.  Duncan,  4  Wall.  210  (1866)   47,  59 

Withington   v.  Eveleth,  7   Pick.   106    (1828) 316 

Withington  v.  Harvard,  8  Cush.  66  (1851)    312 

Wolff  v.  New  Orleans,  103  U<  S.  358  (1880)   25 

Wood  v.  Bogle,  115  Mass.  30   (1874)    '. 234 

Wood  v .  Hudson,  114  Mass.  513  (1874) 679 

Wood  v.  Torrey,  97  Mass.  321  (1867) 246,  333 

Woodbridge  v.  Mayor  &  Aldermen  of  Cambridge,  114  Mass.  483  (1874)     710,  711 

Woodlawn  Cemetery  v.  Everett,  118  Mass.  354  (1875)    206 

Woodruff  v.  Parham,  8  Wall.  123   (1868)    21,  43,  44 

Woodruff  v.  Trapnall,  10  How.  190   (1850)    24 

Woods  v.  Woburn,  220  Mass.  416  (1915)    107,  115 

Worden  i>.  New  Bedford,  131  Mass.  23  (1881)    5,  103,  107,  113 

Worcester  v.  Board  of  Appeal,  184  Mass.  460  (1904) 175,  531 

Worcester  v.  Boston,   179  Mass.  41    (1901)    227,  232,  356,  369,  370 

Worcester  v.  Western  Railroad  Corporation,  4  Met.  564  (1842)   ..     217,  218,  740 

Worcester  v.  Worcester  St.  Ry.  Co.  182  Mass.  49  (1902)    588 

Worcester  v .  Worcester  St.  Ry.  Co.,  196  U.  S.  539  (1905)   115,  588 

Worcester  Agricultural  Society  v.  Worcester,  116  Mass.  189  (1874)     119,  203,  675 

Worcester  County  v.  Worcester,  116  Mass.  193  (1874)   118,  218,  676 

Worcester  County  Institution  for  Savings  v.  Worcester,  10  Cush.  128  (1852) 

193,  516,  531 
Worcester  Mutual  Fire  Insurance  Co.  v:  Worcester,  7  Cush.  600  (1851)    ..       525 

Workman  v.  Worcester,  118  Mass.  168  (1875)    125,  688 

Wright  v.  Boston,  9  Cush.  223  (1852)   126,  404,  687,  689,  709 

Wright  v.  Boston,   126  Mass.  161    (1879)    225 

Wright  v.  Central  of  Georgia  R.  R.  Co.,  236  U.  S.  674  (1915)   26,  28 

Wright  v .  Georgia  R.  R.  etc.  Co.,  216  U.  S.  420  (1910)  26,  28 

Wright  v.  Leonard,  4  Gray  150   (1855) 753 

Wright  v.  Louisville  etc.  R.  R.  Co.,  195  U.  S.  219  (1904)   56,  76 

Wright  v.  Louisville  etc.  R.  R.  Co.,  236  U.  S.  687  (1915)   28 

Wright  v.  Lowell,  166  Mass.  298   (1896)    265,  290,  292 

Wright  v.  Quinn,  238  Mass.  439  (1921)   104 

Wright  v.  Walcott,  238  Mass.  432  (1921)   *      107 

Wurts  v.  Hoagland,  114  U.  S.  606  (1885) 121 

Wyeth  v.  Cambridge  Board  of  Health,  200  Mass.  474  (1909)   16 

Yazoo  etc.  R.  R.  Co.  v.  Adams,  180  U.  S.  1  (1901)   29 

Young  Men's  Protestant  etc.  Society  v.  Fall  River,  160  Mass.  409  (1894)     199,  204 

Zonne  v.  Minneapolis  Syndicate,  220  U.  S.  187  (1911)   14,  550 


TAXATION  IN  MASSACHUSETTS 


NATURE  AND  CHARACTERISTICS  OF  TAXATION 

1.  The  Power  of  Taxation  Defined 

The  power  of  taxation  may  be  defined  as  the  power  of  a 
sovereign  state  to  require  a  contribution  of  money  or  other 
property  in  accordance  with  some  reasonable  rule  of  apportion- 
ment from  persons  or  property  within  its  jurisdiction  for  the 
purpose  of  defraying  the  public  expenses. 

Included  in  the  absolute  authority  of  a  sovereign  state  over 
persons  and  property  within  its  jurisdiction  is  the  power  to  raise 
revenue  from  such  persons  or  property  by  whatever  means  seems 
best,  to  be  expended  in  whatever  way  seems  desirable,  without 
any  other  limit  than  the  extent  of  its  physical  power  to  exact 
payment  or  any  other  check  than  the  fear  of  rebellion  in  a  des- 
potism or  defeat  at  the  polls  in  an  elective  government.  In  a 
modern  civilized  community,  however,  even  in  the  absence  of  a 
written  constitution,  the  raising  of  revenue  by  the  sovereign 
must  have  risen  above  a  system  of  indiscriminate  plunder  and 
extortion  to  be  dignified  by  the  name  of  taxation.  A  method 
of  raising  revenue,  to  constitute  a  tax,  must  consist  of  an  en- 
forced contribution  of  money  or  other  property1  assessed  in 
accordance  with  some  reasonable  rule  of  apportionment2  by 
authority  of  a  sovereign  state,3  on  persons  or  property  within 
its  jurisdiction4  for  the  purpose  of  defraying  the  public 
expenses.5 

2.  Taxes  Distinguished  from  other  Pecuniary  Impositions 

In  England  and  other  countries  in  which  the  power  of  the 
government  is  not  limited  by  a  written  constitution,  the  power 

1  New  Jersey  v.  Anderson,  203  U.  S.  483  (1906);  Houck  v.  Little  River 
Drainage  District,  239  U.  S.  254  (1915). 

2  Pollock  v.  Farmers'  Loan  &  Trust  Co.  157  U.  S.  429  (1895) ;  Houck  v. 
Little  River  Drainage  District,  239  U.  S.  254   (1915). 

3  Morgan's  Louisiana,  etc.  R.  R.  etc.  Co.  v.  Louisiana  Board  of  Health, 
118  U.  S.  455  (1886). 

*  State  Tax  on  Foreign  Held  Bonds,  15  Wall.  300  (1872);  New  Jersey  v. 
Anderson,  203  U.  S.  483  (1906). 

5  Loan  Association  v.  Topeka,  20  Wall.  655  (1874) :  Morgan's  Louisiana  etc. 
R.  R.  etc.  Co.  v.  Louisiana  Board  of  Health,  118  U.  S.  455  (1886);  Pollock  v. 
Farmers'  Loan  &  Trust  Co.,  157  U.  S.  429  (1895);  New  Jersey  v.  Anderson,  203 
U.  S.  483  (1906) ;  Houck  v.  Little  River  Drainage  District,  239  U.  S.  254  (1915); 
Lowell  v.  Boston,  111  Mass.  154  (1873). 


4  ;,-'/[  ,'■■  I  '/•,  Taxation/'- *n.  ■  Massachusetts  [parti 

of  the  legislative  branch  of  the  government  to  levy  taxes  is  abso- 
lute; but  in  the  United  States  the  power  of  taxation,  like  other 
governmental  powers,  is  limited  by  the  provisions  of  the  consti- 
tution. As  the  power  of  taxation  is  subject  to  different  constitu- 
tional limitations  from  those  which  apply  to  other  governmental 
powers  and  not  all  pecuniary  impositions  enforced  by  the  state 
constitute  an  exercise  of  the  power  of  taxation,  to  comprehend 
the  constitutional  limitations  resting  upon  the  power  of  taxation 
it  is  necessary  to  clearly  understand  the  distinction  between 
taxes  and  other  pecuniary  impositions  enforced  by  the  state. 
So  also  the  distinction  between  taxes  and  other  pecuniary  impo- 
sitions is  often  important  in  construing  contracts  in  which  one 
party  has  agreed  to  pay  the  taxes  on  certain  property  or  on  a 
certain  occupation. 

Nevertheless,  while  the  classification  of  pecuniary  impositions 
is  important,  it  is  not  controlling.  When  the  question  at  issue 
is  whether  a  state  statute  contravenes  rights  secured  by  the  con- 
stitution, the  decision  must  depend  not  upon  any  mere  question 
of  form,  construction  or  definition,  but  upon  the  practical  opera- 
tion and  effect  of  the  burden  imposed.1  A  state  cannot  make 
an  act  unconstitutional  by  misdescribing  its  character,2  nor  can 
it  justify  an  unconstitutional  interference  with  property  by 
calling  it  a  tax  of  a  kind  which  the  state  may  lawfully  impose.3 

3.  Tax  Distinguished  from  Sale  of  a  Commodity 

A  tax  should  be  carefully  distinguished  from  the  income 
derived  from  the  sale  of  a  commodity  or  from  fees  charged  for 
the  use  of  public  property.  A  state  or  one  of  its  subdivisions, 
such  as  a  county,  city  or  town,  frequently  raises  revenue  or  at 
least  defrays  the  expense  of  one  of  its  undertakings  by  selling 
to  the  public  or  to  its  own  inhabitants  a  commercial  commodity, 
either  as  a  matter  of  general  convenience  and  to  supply  a  de- 
mand which  cannot  readily  be  met  by  individual  enterprise,  or 

i  St.  Louis  Southwestern  Ry.  Co.  v.  Arkansas,  235  U.  S.  350,  362  (1914) ; 
Mountain  Timber  Co.  v.  Washington,  243  U.  S.  219.  237  (1917);  Crew  Levick 
Co.  v.  Pennsylvania,  245  U.  S.  292,  294  (1917) ;  American  Mfg.  Co.  v.  St.  Louis, 
250  U.  S.  459,  463  (1919) ;  Shaffer  v.  Carter,  252  U.  S.  37,  55  (1920) ;  Massachu- 
setts General  Hospital  v.  Belmont,  Mass.  (1921). 

2  Wagner  v.  Covington,  251  U.  S.  95  (1919) ;  Eaton,  Crane  &  Pike  Co.  v. 
Commonwealth,  237  Mass.  523   (1921). 

3  Askren  v.  Continental  Oil  Co..  252  U.  S.  444  (1920);  Commonwealth  v 
People's  Savings  Bank,  5  Allen  428,  432  (1862), 


sect.  3]         Nature  and  Characteristics  of  Taxation  5 

to  dispose  of  some  by-product  of  the  public  works  or  some 
property  no  longer  needed  by  it  for  the  public  use.1  Although 
payments  to  a  municipal  corporation  for  services  rendered  or 
property  sold  are  sometimes  spoken  of  as  taxes,  as  for  example, 
even  in  carefully  drawn  leases,  charges  for  water  furnished  by  a 
municipal  water  supply  are  frequently  referred  to  as  "water 
taxes,"  this  use  of  language  is  inaccurate.2  The  raising  of  funds 
in  this  manner  is  not  taxation,  and  is  not  subject  to  the  consti- 
tutional limitations  upon  the  power  of  taxation.3  The  distinc- 
tion between  a  tax  and  the  sale  of  a  commodity  is  usually  not 
difficult  to  draw,4  although  the  state  in  taxing  an  occupation 
which  it  has  the  power  to  regulate  or  prohibiten  a  certain  sense 

1  Thus  a  city  or  town  acts  in  a  purely  commercial  capacity  in  supplying  water 
to  its  inhabitants.  Hand  v.  Brookline,  126  Mass.  324  (1879);  Merrimack  River 
Savings  Bank  v.  Lowell,  152  Mass.  556  (1891) ;  D'Amico  v.  Boston,  176  Mass. 
599  (1900) ;  or  in  maintaining  a  ferry  upon  which  tolls  are  charged,  Davies  v. 
Boston,  190  Mass.  194  (1906);  or  in  letting  its  public  buildings  to  private 
parties,  Worden  v.  New  Bedford,  131  Mass.  23  (1881);  Little  v.  Holyoke,  177 
Mass.  114  (1900) ;  or  in  taking  boarders  at  its  poor  farm,  Neff  v.  Wellesley,  148 
Mass.  487  (1889) ;  or  in  selling  a  building  no  longer  needed  by  it,  Neuert  v. 
Boston,  120  Mass.  338  (1876) ;  or  in  selling  crushed  stone,  Collins  v.  Greenfield, 
172  Mass.  78  (1898);  Duggan  v.  Peabody,  187  Mass.  349  (1905). 

2  Water  rates  are  not  taxes,  Sinclair  v.  Mayor  of  Fall  River,  198  Mass. 
248  (1908). 

3  A  town  may  require  a  telegraph  company  to  pay  a  certain  sum  annually 
for  every  pole  it  maintains  in  the  public  street,  although  it  has  been  authorized 
by  Congress  to  maintain  its  lines  along  all  post  roads  in  the  United  States. 
The  charge  is  not  a  license  tax  but  a  rental  for  the  use  of  the  streets.  St.  Louis 
v.  Western  Union  Telegraph  Co.,  148  U.  S.  92  (1893).  The  legislature  may 
require  the  payment  of  rent  for  the  maintenance  of  structures  in  public  streets. 
Opinion  of  the  Justices,  208  Mass.  603,  606  (1911).  A  state  may  impose  a 
toll,  based  on  tonnage,  on  vessels  passing  through  an  improved  waterway, 
although  a  state  tax  on  tonnage  is  expressly  prohibited  by  the  constitution  of 
the  United  States.  Huse  v.  Glover,  119  U.  S.  547  (1886).  See  also  Keokuk  etc. 
Packet  Co.  v.  Keokuk,  95  U.  S.  80  (1877);  Sands  v.  Manistee  River  Imp.  Co. 
123  U.  S.  288  (1887).  A  license  fee  for  the  use  of  automobiles  may  be  sustained 
as  a  toll  for  the  use  of  the  roads,  Hendrick  v.  Maryland,  235  U.  S.  610  (1915); 
Kane  v.  New  Jersey,  242  U.  S.  160  (1916).  A  charge  for  the  use  of  municipal 
sewers  is  not  a  tax.  Carson  v.  Brockton,  182  U.  S.  398  (1901)  affirming  175  Mass. 
242  (1900).  So  also  a  charge  for  the  use  of  municipal  wharves,  Parkersburg  etc. 
Transportation  Co.  v.  Parkersburg,  107  U.  S.  (1882),  or  for  the  use  of  log 
booms  erected  and  maintained  by  the  public  authorities,  Lindsay  etc  Co.  v. 
Mullen,  176  U.  S.  126  (1900),  is  not  a  tax. 

4  The  line  between  a  commercial  undertaking  and  taxation  was  nearly 
obliterated  when  the  first  sewer  assessments  were  laid  in  Massachusetts  (infra 
§  64).  Sewers  had  previously  been  built  by  private  parties  and  any  person  who 
subsequently  entered  his  drain  into  the  sewer  was  obliged  to  pay  the  persons 
who  built  the  sewer  for  the  privilege;  and  when  the  cities  and  towns  took 
over  the  sewers  they  collected  payment  in  much  the  same  way.  so  that  the 
sewers  were  held  to  be  a  commercial  undertaking.  Boston  v.  Shaw.  1  Met. 
130  (1840);  Child  v.  Boston.  4  Allen  41  (1862);  Smith  v.  Gloucester,  201  Mass. 
329   (1909). 


6  Taxation   in   Massachusetts  [part  i 

sells  the  privilege  of  engaging  in  that  occupation,  such  a  trans- 
action depends  for  its  effectiveness  entirely  upon  an  exercise  of 
governmental  power  and  is  subject  to  all  the  constitutional 
limitations  upon  the  exercise  of  such  power,5  while  the  sale  of  a 
commodity  by  the  state  to  members  of  the  public  is  an  as- 
sumption by  the  state,  for  the  public  convenience,  of  commercial 
functions,  and  voluntary  payment  for  the  commodity  is  no  more 
a  tax  when  it  is  paid  to  the  state  than  when  it  is  paid  to  the 
individual  vendor. 

4.  Taxation  Distinguished  from  Regulation 

A  substantial  part  of  the  public  revenue  is  frequently  derived 
from  an  exercise  of  the  power  of  regulation,  but  since  the  primary 
purpose  of  a  tax  must  be  the  defraying  of  public  expenses,  a 
charge  primarily  imposed  for  purposes  of  regulation  is  not  a 
tax 1  but  an  exercise  of  the  police  power  —  that  is,  the  power 
of  a  sovereign  state  to  prevent  persons  within  its  jurisdiction 
from  conducting  themselves  or  from  using  their  property  to  the 
detriment  of  the  general  welfare.  It  is  often  found  desirable 
to  restrict  the  performance  of  an  act  harmless  in  itself  but  which 
if  done  too  frequently  will  be  injurious  to  the  public  welfare, 
and  instead  of  devising  an  arbitrary  limit  to  the  number  of 
persons  who  may  perform  the  act  or  to  the  number  of  times  it 
may  be  performed  the  legislature  frequently  imposes  a  fee  or 
charge  upon  the  performance  of  the  act  which  indirectly  effects 
the  desired  result.  If  the  legislative  body  which  establishes  the 
imposition  has  both  the  power  to  tax  and  the  power  to  regulate 
the  subject-matter  and  the  enactment  does  not  violate  the 
constitutional  limitations  upon  either  power,  it  is  of  no  im- 
portance whether  the  power  of  taxation  or  the  police  power  was 
intended  to  be  invoked,  and  the  imposition  may  well  be  intended 
to  provide  both  revenue  and  regulation.2  For  example,  Congress, 
having  both  power  to  levy  taxes  generally  and  to  regulate  foreign 
commerce,  may  impose  a  tariff  on  imports  as  a  means  of  raising 
revenue  or  for  the  protection  of  local  industries,  or  for  both 
purposes,  and  the  primary  motive  is  immaterial.     State  legis- 

5  New  Jersey  v.  Anderson.  203  U.  S.  483  (1906). 

i  Royall  v.  Virginia,  116  U.  S.  572  (1886). 

2  Gundling  v.  Chicago,  177  U.  S.  183  (1900) ;  Hodge  v.  Muscatine  County, 
196  U.  S.  276  (1905);  Kentucky  Union  Co.  v.  Kentucky,  219  U.  S.  140  (1911); 
Bradley  v.  Richmond,  227  U.  S.  477  (1913). 


sect.  4]        Nature  and  Characteristics  of  Taxation  7 

latures  having  both  power  to  levy  taxes  generally  and  the  police 
power  frequently  before  the  adoption  of  the  Eighteenth 
Amendment  imposed  an  excise  on  the  sale  of  intoxicating  liquors 
both  as  a  means  of  raising  revenue  and  for  the  purpose  of  regu- 
lating a  traffic  injurious  to  public  morals  or  for  both  purposes. 
If  the  primary  purpose  in  such  a  case  is  to  raise  revenue,  the 
imposition  is  a  tax;  if  the  primary  purpose  is  to  regulate,  the 
imposition  is  an  exercise  of  the  police  power.  To  ascertain  the 
real  purpose  of  such  legislation  is  of  interest  from  the  point  of 
view  of  the  economist  or  the  statesman,  but  it  can  have  no 
bearing  upon  the  constitutionality  of  the  enactment.  When 
however  the  legislative  body  has  the  power  to  tax  and  has  not 
the  power  to  regulate  the  subject-matter,  or  has  the  power  to 
regulate  and  has  not  the  power  to  tax  it,  or  the  enactment  in 
controversy  violates  the  constitutional  restrictions  upon  the 
power  of  taxation  but  not  those  upon  the  police  power,  it  may 
be  of  great  importance  in  deciding  whether  the  enactment  is 
constitutional  to  determine  in  the  first  place  under  which  power 
it  falls.  In  such  a  case  the  courts  in  deciding  whether  the  real 
object  of  the  act  is  revenue  or  regulation  will  not  be  bound  by 
a  legislative  declaration  of  intent,  but  will  examine  the  act 
itself  and  its  probable  effect,  giving  weight  to  the  usual  pre- 
sumption in  favor  of  constitutionality,  so  that  the  act  will  be 
construed  to  be  an  exercise  of  the  power  of  which  it  would  be  a 
valid  exercise  if  such  construction  is  reasonably  possible.3 

If  the  legislature  has  power  to  prohibit  a  certain  act  al- 
together it  may  establish  a  pecuniary  imposition  upon  its  per- 
formance intended  as  a  substantial  prohibition  or  as  a  drastic 
limitation  of  the  number  of  persons  who  will  perform  the  act;4 
if  however  the  legislature  has  no  power  to  prohibit  the  act  it  can- 
not establish  a  pecuniary  imposition  really  intended  as  a  prohi- 
bition. A  tax  upon  the  performance  of  an  act  which  the  legis- 
lature could  not  constitutionally  prohibit  must  be  reasonable 
in  amount,  and  must  not  be  so  excessive  as  to  bring  about  the 
suppression  of  any  useful  or  legitimate  occupation  or  the  depri- 
vation of  any  natural  and  inalienable  right.5    For  example,  a 

3  Commonwealth  v.  People's  Savings  Bank,  5  Allen  428,  432  (1862). 

*  Gundling  v.  Chicago,  177  VS.  183  (1900) ;  Hodge  v.  Muscatine  County, 
196  U.  S.  276  (1905);  Bradley  v.  Richmond,  227  U.  S.  477  (1913);  Alaska  Fish 
etc.  Co.  v.  Smith,  255  U.  S.  44  (1921). 

5  Ohio  Tax  Cases,  232  U.  S.  576  (1914). 


8  Taxation    in   Massachusetts  [part  i 

state  may  constitutionally  impose  an  excessive  fee  upon  the 
setting  up  of  a  lottery,  because  it  may  prohibit  lotteries  alto- 
gether as  injurious  to  public  morals,  and  what  it  may  do  directly 
it  may  do  indirectly;  but  the  inheritance  of  the  goods  of  a 
deceased  person  is  the  exercise  of  a  privilege  which  the  state 
may  tax  but  which  it  may  not  prohibit,  because  it  is  not  in- 
jurious to  the  public  welfare.  Accordingly  a  pecuniary  imposi- 
tion upon  inheritance  is  subject  to  the  limitations  of  the  tax- 
ing power  and  must  be  reasonable.6 

When  the  legislature  has  power  to  tax  but  not  to  regulate  the 
subject-matter  and  establishes  a  pecuniary  imposition,  the  pay- 
ment of  the  imposition  is  not  a  license  to  perform  the  act,  and 
the  act  may  be  prohibited  by  the  body  which  has  power  to 
regulate  it,  notwithstanding  the  payment  of  the  tax.7 

5.  Tax  Distinguished  from  Inspection  Fee 

There  is  a  very  common  form  of  pecuniary  imposition  which 
is  enforced  as  an  incident  of  the  exercise  of  the  police  power 
although  sometimes  imposed  with  respect  to  an  act  which  the 
legislature  has  no  power  to  prohibit  or  to  tax  or  indeed  to  bur- 
den with  any  form  of  pecuniary  imposition  of  a, revenue  produc- 
ing character.  Under  such  circumstances,  if  an  occupation  or  act 
is  of  such  a  character  that  a  reasonable  amount  of  inspection  or 

6  Minot  v.  Winthrop,  162  Mass.  113  (1894).  There  seems  however  to  be 
a  possible  distinction  between  an  oppressive  and  confiscatory  tax  imposed  by  a 
state  legislature  as  a  means  of  indirectly  prohibiting  the  exercise  of  a  natural 
right  which  it  would  be  beyond  the  power  of  a  legislature  to  prohibit  directly  and 
a  like  tax  imposed  by  Congress  as  a  means  of  indirectly  prohibiting  the  per- 
formance of  an  act  which  Congress  had  no  power  to  prohibit  directly,  but 
which  is  not  a  right  of  such  a  character  that  the  state  in  the  exercise  of  its 
police  power  could  not  prohibit  it.  Thus  in  Veazie  Bank  v.  Fenno,  8  Wall. 
539  (1869)  a  tax  on  bank  notes  issued  by  state  banks  obviously  intended  by 
Congress  to  drive  such  notes  out  of  circulation  was  sustained.  In  McCray  v. 
United  States,  195  U.  S.  27  (1904)  an  oppressive  federal  tax  on  oleomargarine 
colored  in  imitation  of  butter  was  sustained.  In  1918  a  burdensome  tax  on 
goods  manufactured  by  child  labor  was  imposed,  after  an  attempt  to  regulate 
child  labor  by  the  exclusion  of  the  products  of  such  labor  from  interstate 
commerce  had  been  held  unconstitutional.  If  such  legislation  is  sustained  it  is 
apparent  that  Congress  has  concurrent  power  with  the  states  over  the  whole 
field  of  police  regulations  by  a  colorable  exercise  of  the  taxing  power. 

7  Thus  prior  to  the  adoption  of  the  Eighteenth  Amendment  it  was  held 
that  Congress,  having  power  to  lay  taxes  anywhere  within  the  United  States, 
but  not  having  the  police  power  within  the  limits  of  a  state,  might  tax  the 
sale  of  liquors  within  the  state,  but  might  not  regulate  the  sale,  and  conse- 
quently the  payment  of  the  internal  revenue  tax  on  the  sale  of  liquor  was  not 
a  license  to  sell.  License  Tax  Cases.  5  Wall.  462  (1866) ;  Commonwealth  v. 
Thorniley,  8  Allen  445  (1863);  Commonwealth  v.  Holbrook,  10  Allen  200  (1865). 


sect.  5]         Nature  and  Characteristics  op  Taxation  9 

supervision  by  public  officials  is  necessary  for  the  protection  of 
the  public  health,  morals,  safety  or  welfare,  the  legislature  may 
provide  that  such  inspection  or  supervision  shall  be  performed  at 
the  expense  of  the  persons  who  wish  to  engage  in  the  occupation 
or  perform  the  act,  and  may  facilitate  the  collection  of  the  cost 
of  such  inspection  or  supervision  by  providing  that  no  one  shall 
engage  in  the  occupation  or  perform  the  act  until  a  fee  sufficient 
to  cover  such  cost  has  been  paid.1  A  statute  imposing  such  a 
charge  is  not  the  levy  of  a  tax,  and  the  legislature,  in  imposing 
it,  is  not  subject  to  the  constitutional  limitations  applicable  to 
the  power  of  taxation.2  In  such  cases  the  fee  may  lawfully 
cover  only  the  cost  of  inspection,  and  a  charge  imposed  for  the 
purpose  of  producing  revenue  which  would  be  otherwise  un- 
constitutional cannot  be  saved  by  designating  it  as  an  inspec- 
tion fee.3  It  is  not  however  always  practicable  to  determine  the 
actual  cost  of  inspection  with  absolute  accuracy  and  while  in 
some  cases  it  is  possible  to  divide  up  the  actual  cost  of  inspection 
on  the  parties  inspected,4  a  statute  is  not  unconstitutional  which 
provides  for  the  establishment  of  an  inspection  fee  in  advance, 
even  though  it  turns  out  afterwards  that  the  amount  collected 
exceeded  the  actual  cost  of  inspection,  unless  it  clearly  appears 
that  the  legislature  did  not  reasonably  intend  the  fee  as  the 
approximate  equivalent  of  the  actual  cost.5 

When  the  legislature  has  power  to  tax  an  occupation  or  act, 
the  tax  is  none  the  less  constitutional  because  it  is  called  an 
inspection  fee;  and  if  an  act  or  occupation  is  subject  to  the 

1  Head  Money  Cases,  112  U.  S.  580  (1884);  Morgan's  Louisiana  etc.  R.  R. 
etc.  Co.  v.  Louisiana  Board  of  Health,  118  U.  S.  455  (1886);  Western  Union 
Tel.  Co.  v.  New  Hope,  187  U.  S.  419  (1903) ;  Atlantic  etc.  Tel.  Co.  v.  Phila- 
delphia, 190  U.  S.  160  (1903);  Norris  v.  Boston,  4  Met.  282  (1842);  Postal 
Tel.  Cable  Co.  v.  Chicopee,  207  Mass,  341,  348  (1911). 

2  Head  Money  Cases,  112  U.  S.  580  (1884) ;  Commonwealth  v.  Slocum,  230 
Mass.  180  (1918);  Lever  Brothers  Co.  v.  Commonwealth,  232  Mass.  22  (1919). 

a  Smith  v.  Alabama,  124  U.  S.  465  (1888) ;  Atlantic  etc.  Tel.  Co.  v.  Phila- 
delphia, 190  U.  S.  160  (1903) ;  Postal  Tel.  Cable  Co.  v.  Taylor,  192  U.S.64  (1904) ; 
Askren  v.  Continental  Oil  Co.,  252  U.  S.  444  (1920);  Norris  v.  Boston,  4  Met. 
282  (1842);  Commonwealth  v.  Stodder,  2  Cush.  562  (1848);  Perkins  v.  West- 
wood,  236  Mass.  268,  275  (1917). 

4  As  when  the  actual  cost  of  supervising  public  service  corporations  through 
the  appropriate  commissions  is  assessed  upon  the  corporations  supervised. 
Nashville  etc.  R.  R.  Co.  v.  Alabama,  128  U.  S.  96  (1888) ;  Charlotte  etc.  R.  R. 
Co.  v.  Gibbes,  142  U.  S.  386  (1892) ;  People  v.  Squire,  145  U.  S.  175  (1892). 

5  Atlantic  etc.  Tel.  Co.  v.  Philadelphia,  190  U.  S.  160  (1903) ;  McLean  v. 
Denver  etc.  R.  R.  Co.  203  U.  S.  38  (1906);  Red  C.  Oil  Mfg.  Co.  v.  North 
Carolina  Board  of  Agriculture,  222  U.  S.  380  (1912) ;  Savage  v.  Jones,  225  U.  S. 
501  (1912);  Commonwealth  v.  Slocum,  230  Mass.  180  (1918). 


10  Taxation    in   Massachusetts  [part  i 

power  of  taxation,  an  inspection  fee  upon  it  need  bear  no  re- 
lation to  the  cost  of  inspection.6 

6.  Taxation  Distinguished  from  other  Governmental 

Powers 

Pecuniary  impositions  having  many  of  the  characteristics 
of  special  assessments  under  the  power  of  taxation  are  in  some 
instances  enforced  as  an  exercise  of  the  police  power,  and  the 
resemblance  between  the  set-off  of  benefits  in  assessing  damages 
for  the  taking  of  land  under  the  power  of  eminent  domain  and 
the  assessments  of  betterments  under  the  taxing  power  for  the 
construction  of  the  improvements  for  which  the  land  is  taken 
is  often  close;  but  these  distinctions  are  discussed  at  length  in 
later  sections  of  this  work.1 

In  some  jurisdictions  an  attempt  has  been  made  to  employ 
the  power  of  taxation  to  assist  in  the  enforcement  of  the  criminal 
law,  and  a  heavy  "mulct  tax"  is  imposed  on  the  performance  of 
a  prohibited  act.  When  the  statute  provides  proceedings  appro- 
priate for  the  collection  of  a  tax  rather  than  for  the  enforcement 
of  a  penalty  and  does  not  contemplate  a  criminal  proceeding,  it 
will  be  treated  as  imposing  a  tax  rather  than  a  penalty.2 

The  power  of  a  state  to  require  all  able-bodied  citizens  to 
work  upon  the  public  highways  a  certain  number  of  days  each 
year  is  so  firmly  established  by  custom  dating  back  to  the  earliest 
settlement  of  the  colonies  that  such  a  requirement  does  not 
constitute  the  taking  of  property  without  due  process  of  law  and 
is  clearly  constitutional. 3  In  some  states  such  a  requirement 
is  considered  an  exercise  of  the  power  of  taxation,  but  the  better 
view  is  that  it  is  the  enforcement  of  the  duty  of  every  man  to 
serve  the  state,  of  which  other  examples  are  the  obligation  of 
jury  service  and  the  conscription  of  soldiers  in  time  of  war,  and 
that  consequently  statutes  enforcing  the  obligation  to  labor 
on  the  roads  are  not  subject  to  the  constitutional  limitations 
applicable  to  the  power  of  taxation.  In  states  in  which  the  labor 
on  the  roads  is  performed  as  a  means  of  "working  out"  taxes,  the 
statutes  which  regulate  the  subject  are  however  enacted  under 
the  taxing  power. 

6  Boston  v.  Schaffer,  9  Pick.  415  (1830). 

1  Infra  §  §  64,  71. 

2  Cook  v.  Marshall  County,  196  U.  S.  261  (1905);  Hodge  v.  Muscatine 
County,  196  U.  S.  276  (1905). 

»  Butler  v.  Perry,  240  U.  S.  328.     (1916). 


sect.  8]        Nature  and  Characteristics  of  Taxation  11 

7.   Whether  a  Tax  is  a  Debt 

A  debt  is  a  sum  of  money  due  by  certain  and  express  agree- 
ment and  originates  in  and  is  founded  upon  a  contract,  ex- 
press or  implied.  A  tax,  on  the  other  hand,  does  not  rest  upon 
the  contract,  express  or  implied,  of  the  person  taxed,  but  is  a 
forced  contribution  under  an  obligation  created  by  statute  and 
founded  upon  the  public  necessity.  It  is  therefore  generally 
considered  that  a  tax  is  not  a  debt.1  On  the  other  hand  it  must 
be  remembered  that  at  the  common  law  an  information  of  debt 
lay  to  recover  any  taxes  or  duties  due  to  the  crown,  and  it  is 
generally  considered  that,  in  the  absence  of  any  statutory 
remedy  which  may  well  be  considered  to  have  been  intended 
to  be  exclusive,  an  action  at  common  law  may  be  maintained  to 
recover  a  tax  as  for  a  debt;  2  and  a  tax  will  generally  be  held 
to  constitute  a  debt  when  such  construction  is  necessary  to  en- 
force the  obligation  due  the  public.3 

8.  The  Divisions  of  the  Power  of  Taxation 

The  power  of  taxation,  using  the  word  taxation  in  its 
generic  sense  to  indicate  all  pecuniary  impositions  laid  by  public 
authority  for  the  purpose  of  raising  revenue,  embraces  two  divi- 
sions, namely  taxes,  properly  so  called,  and  excises. 

Taxes,  in  their  specific  sense,  are  burdens  laid  directly  upon 
persons  or  property  and  include  (1)  general  taxes  laid  on  all 
the  persons  and  property  or  all  the  persons  and  property  of  a 
certain  class  in  a  particular  state,  county,  city,  town  or  other 
governmental  or  territorial  division,  for  the  purpose  of  defraying 
the  public  expenses  of  that  governmental  or  territorial  division  ; 
and  (2)  special  assessments  laid  on  the  property  specially  bene- 
fited by  a  local  improvement  in  proportion  to  the  benefit,  for 

1  Lane  County  v.  Oregon,  7  Wall.  71  (1868);  Meriwether  v.  Garrett,  102 
U.  S.  472  (1880);  New  Jersey  v.  Anderson,  203  U.  S.  483  (1906);  Appleton  v. 
Hopkins,  5  Gray,  530  (1855);  Boston  v.  Turner.  201  Mass.  190,  193  (1909); 
Attorney  General  v.  East  Boston  Co.,  222  Mass.  450  (1915).  See  also,  Andover 
etc.  Turnpike  Corp.  v.  Gould,  6  Mass.  40  (1809);  Crapo  v.  Stetson,  8  Met.  106 
(1841);  Richardson  v.  Boston,  148  Mass.  508  (1889);  Old  Colony  Trust  Co.  v. 
Treasurer  &  Receiver  General,  Mass.  (1921). 

2  Meredith  v.  United  States,  13  Pet.  486,  260  (1839) ;  Dollar  Savings  Bank 
v.  United  States,  19  Wall.  227  (1873) ;  United  States  v.  Philadelphia  etc.  R.  R. 
Co.,  123  U.  S.  113  (1887);  United  States  v.  Chamberlin,  219  U.  S.  250   (1911). 

3  Felker  v.  Standard  Yarn  Co.,  148  Mass.  226  (1889).  See  also,  Bristol  v. 
Washington  County,  177  U.  S.  133  (1900). 


12  Taxation    in   Massachusetts  [part  i 

the  purpose  of  defraying  the  cost  of  the  improvement.  In  either 
case  the  obligation  to  pay  is  absolute  and  unavoidable  and  is  not 
based  upon  any  voluntary  action  of  the  person  assessed. 

Excises,  in  their  original  sense,  were  something  cut  off  from 
the  price  paid  on  a  sale  of  goods  as  a  contribution  to  the  support 
of  government.  The  word  has  now  come  to  have  a  broader 
meaning  and  to  include  every  pecuniary  imposition  created 
under  the  power  of  taxation  which  is  not  a  burden  laid  directly 
upon  persons  or  property,  or  in  other  words  every  charge  im- 
posed by  public  authority  for  the  purpose  of  raising  revenue 
upon  the  performance  of  an  act,  the  enjoyment  of  a  privilege  or 
the  engaging  in  an  occupation.  The  obligation  to  pay  an  excise  is 
based  upon  the  voluntary  action  of  the  person  taxed  in  per- 
forming the  act,  enjoying  the  privilege  or  engaging  in  the  occu- 
pation which  is  the  subject  of  the  excise,  and  the  element  of 
absolute  and  unavoidable  demand  is  lacking. 

In  the  constitution  of  Massachusetts  different  limitations 
apply  to  "assessments,  rates  and  taxes"  than  to  "duties  and  ex- 
cises " *  and  it  is  consequently  important  in  every  case  in  which 
the  constitutionality  of  an  attemped  exercise  of  the  power  of  tax- 
ation is  assailed  to  determine  whether  the  pecuniary  imposition 
under  consideration  is  a  tax  or  an  excise.  The  substance  of  the 
distinction  is  guarded  by  the  courts,  and  it  would  not  be  permis- 
sible to  evade  the  limitations  upon  the  power  of  laying  taxes 
upon  property  by  imposing  an  excise  upon  the  privilege  of  own- 
ing property ; 2  nevertheless  every  excise  is  indirectly  a  tax  upon 
property  and  the  legislature  may  constitutionally  provide  that 
the  amount  of  an  excise  shall  depend  upon  the  value  of  the  priv- 
ilege taxed,  and  that  the  value  of  the  privilege  shall  be  deter- 
mined by  taking  into  consideration  the  value  of  the  property 
to  which  the  privilege  relates.3    Such  an  excise  however  is  in  no 

1  Infra,  §  §  51-54  inc. 

2  Pollock  v.  Farmers'  Loan  &  Trust  Co..  157  U.  S.  429  (1895) ;  Choctaw  etc. 
R.  R.  Co.  v.  Harrison,  235  U.  S.  292  (1914);  Opinion  of  the  Justices,  195  Mass. 
607,  614  (1908);  Opinion  of  the  Justices,  208  Mass.  618  (1911);  Opinion  of  the 
Justices,  220  Mass.  613  (1915).  Thus  a  tax  on  the  removing  of  whiskey  from 
a  bonded  warehouse  is  in  effect  a  tax  on  the  ownership  of  the  whiskey  and 
so  is  a  property  tax.  Dawson  v.  Kentucky  Distilleries  etc.  Co.,  255  U.  S.  288 
(1921).  But  there  may  be  an  excise  on  the  ownership  of  dogs,  for  the  right  of 
property  in  such  animals  is  a  qualified  one.  Nicchi'a  v.  New  York,  254  U.  S. 
228  (1920). 

3  Maine  v.  Grand  Trunk  R.  R.  Co.  142  U.  S  217  (1891) ;  Commonwealth 
v.  People's  Savings  Bank,  5  Allen  428  (1862);  Commonwealth  v.  Hamilton 
Manufacturing  Co.,  12  Allen  298  (1866). 


sect.  8]        Nature  and  Characteristics  of  Taxation  13 

sense  a  tax  on  the  property,  and  the  value  of  property  which  is 
not  subject  to  taxation  may  be  considered  in  determining  the 
value  of  a  privilege  for  the  purpose  of  fixing  the  amount  of  an 
excise.4 

In  the  constitution  of  the  United  States  a  similar  distinction 
is  made  between  taxes  and  excises.  It  is  provided  that  Congress 
shall  have  power  "to  lay  and  collect  taxes,  duties,  imposts  and 
excises,  .  .  ,  but  all  duties,  imposts  and  excises  shall  be  uniform 
throughout  the  United  States"  5  and  that  "no  capitation  or  other 
direct  tax  shall  be  laid  unless  in  proportion  to  the  census  or 
enumeration  hereinbefore  directed  to  be  taken."  6  There  has 
been  great  difficulty  over  the  meaning  of  the  last  clause  and  at 
first  there  was  some  doubt  whether  the  two  clauses  were  anti- 
thetical. It  was  held  or  intimated  in  the  earlier  decisions  that 
the  only  direct  taxes  besides  poll  taxes  were  taxes  on  real  estate, 
the  theory  being  that  the  land-owner  ultimately  paid  all  taxes  and 
so  a  tax  on  land  was  direct  and  other  taxes  indirect.7  Later  de- 
cisions repudiated  this  doctrine  and  held  that  "duties,  imposts 
and  excises"  included  all  forms  of  taxation  known  to  the  law 
which  were  not  direct  taxes,8  so  that  there  does  not  seem  to  be 
now  any  substantial  difference  in  the  distinction  between  "as- 
sessments, rates  and  taxes"  and  "duties  and  excises"  in  the  Mass- 
achusetts, constitution  and  that  between  "capitation  and  other 
direct  taxes"  and  "duties,  imposts  and  excises"  in  the  constitu- 
tion of  the  United  States.9 

4  Hamilton  Co.  v.  Massachusetts,  6  Wall.  632  (1867);  Commonwealth  v. 
New  England  Slate  &  Tile  Co.,  13  Allen  391  (1866) ;  Manufacturers'  Insurance 
Co.  v.  Loud,  99  Mass.  146  (1868);  Provident  Institution  for  Savings  v.  Massa- 
chusetts, 6  Wall.  611  (1867);  United  States  v.  Perkins,  163  U.  S.  625  (1897); 
Plummer  v.  Coler,  178  U.  S.  115  (1900);  Flint  v.  Stone  Tracy  Co.,  220  U.  S. 
107  (1911). 

5  Art.  I,  Sec.  8,  cl.  1. 

6  Art  I,  Sec.  9,  cl.  4. 

7  Hylton  v.  United  States,  3  Dall.  171  (1796) ;  Springer  v.  United  Statc3, 
102  U.  S.  586  (1880). 

8  Pollock  v.  Farmers'  Loan  &  Trust  Co.,  157  U.  S.  429  (1895) ;  same  case  on 
rehearing,  158  U.  S.  601  (1895). 

9  Thomas  v.  United  States,  192  U.  S.  363  (1902).  The  following  federal 
taxes  have  been  sustained  as  constituting  duties  or  excises  rather  than  direct 
taxes;  a  tax  on  carriages,  Hylton  v.  United  States,  3  Dall.  171  (1796);  a  tax  on 
the  circulating  notes  of  state  banks,  Veazie  Bank  v.  Fenno,  8  Wall.  539  (1869)  ; 
a  tax  on  the  devolution  of  real  estate  by  will  or  descent,  Scholey  v.  Rew,  23 
Wall.  331  (1874) ;  a  tax  on  sales  of  merchandise  at  exchanges  or  boards  of 
trade,  Nichol  v.  Ames,  173  U.  S.  509  (1899),  a  tax  on  the  passing  of  property 
by  will  or  intestate  succession,  whether  in  the  form  of  a  succession  tax,  Knowlton 
v.  Moore,  178  U.  S.  41  (1900),  or  of  an  estate  tax.  New  York  Trust  Co.  v. 
Eisner,  U.  S.  (1921) ;   a  tax  on  agreements  to  sell  shares  of  stock, 


14  Taxation    in    Massachusetts  [part  i 

In  determining  whether  a  particular  tax  is  a  property  tax  or 
an  excise,  the  name  by  which  the  tax  is  called  in  the  statute  im- 
posing it  is  of  no  consequence.  The  court  will  look  into  the  sub- 
stance and  effect  of  the  tax,  and  if  it  is  really  a  tax  on  property 
it  cannot  be  made  an  excise  by  calling  it  one.10  On  the  other  hand 
if  it  is  really  an  excise  it  will  be  treated  as  such,  although  not 
called  an  excise  in  the  statute.11 


Treat  v.  White,  181  U.  S.  264  (1901) ;  a  tax  on  tobacco  prepared  for 
consumption  or  sale,  Patton  v.  Brady  184  U.  S.  608  (1902);  a  stamp 
tax  on  contracts  for  the  sale  of  certificates  of  stock,  Thomas  v.  United 
States,  192  U.  S.  363  (1902) ;  a  tax  on  the  gross  receipts  of  companies  engaged 
in  refining  sugar,  Spreckels  Sugar  Refining  Co.  v.  McClain,  192  U.  S.  397  (1904) ; 
a  tax  on  the  manufacture  of  cheese,  Cornell  v.  Coyne,  192  U.  S.  418  (1904) ; 
a  tax  on  artificially  colored  oleomargarine,  McCray  v.  United  States,  195  U.  S. 
27  (1904);  a  tax  on  the  doing  of  business  in  a  corporate  capacity  measured  by 
income,  Flint  v.  Stone  Tracy  Co.  220  U.  S.  107  (1911);  a  tax  on  the  use  of 
foreign  built  yachts,  Billings  v.  United  States,  232  U.  S.  261  (1914).  With  respect 
to  the  taxation  of  incomes,  it  was  at  first  held  that  an  income  tax  was  an  excise, 
Springer  v.  United  States,  102  U.  S.  (1880)  but  later  that  an  income  tax  so  far 
as  it  applied  to  a  tax  on  the  income  of  property  was  a  direct  tax,  Pollock  v. 
Farmers'  Loan  &  Trust  Co.,  157  U.  S.  429  (1895),  758  U.  S.  601  (1895).  The  Six- 
teenth Amendment  specifically  authorized  the  levy  of  an  income  tax  without 
apportionment,  but  the  court  has  treated  the  amendment  as  merely  correcting 
a  mistaken  theory  under  which  the  court  acted  in  the  Pollock  case,  Stanton  v. 
Baltic  Mining  Co.,  240  U.  S.  103  (1916) ;  Brushaber  v.  Union  Pacific  R.  R.  Co., 
240  U.  S.  1  (1916).  The  following  taxes  have  been  held  to  be  excises  and  not 
property  taxes  by  the  Supreme  Judicial  Court  of  Massachusetts:  A  tax  on  the 
capital  stock  of  banking  corporations,  Portland  Bank  v.  Apthorp  12  Mass.  252 
(1815) ;  a  tax  on  savings  banks  measured  by  their  deposits,  Commonwealth  v. 
People's  Five  Cents  Savings  Bank,  5  Allen  428  (1862);  Commonwealth  v.  Provi- 
dent Institution  for  Savings,  12  Allen  312  (1866) ;  a  tax  on  the  franchise  of  cor- 
porations measured  by  the  aggregate  value  of  the  capital  stock,  Commonwealth 
v.  Lowell  Gas  Light  Co.,  12  Allen  75  (1866) ;  Commonwealth  v.  Hamilton  Manu- 
facturing Co.,  12  Allen  208  (1866);  a  tax  on  foreign  corporations  measured  by 
their  authorized  capital  stock,  Attorney  General  v.  Bay  State  Mining  Co.,  99 
Mass.  148  (1868) ;  a  tax  on  insurance  companies,  incorporated  and  unincorporated, 
measured  by  premiums,  Oliver  v.  Liverpool  etc.  Insurance  Co.  100  Mass.  531 
(1868);  an  inheritance  tax,  Minot  v.  Winthrop,  162  Mass.  113  (1894);  a  tax 
on  sales  of  stock  certificates.  Opinion  of  the  Justices,  196  Mass.  602  (1908). 
With  respect  to  income  taxes  it  has  been  held  that  a  tax  on  the  income  of 
property  is  a  property  tax,  Opinion  of  the  Justices,  220  Mass.  613,  623  (1915); 
Tax  Commissioner  v.  Putnam,  227  Mass.  522,  531  (1917).  The  court  has 
discussed  but  not  determined  the  question  whether  a  tax  on  the  income  from 
business  or  employment  is  a  property  tax  or  an  excise,  Opinion  of  the  Justices, 
220  Mass.  613,  624  (1915) ;  but  it  has  been  held  that  a  tax  on  the  income  of 
a  foreign  corporation  can  be  sustained  as  an  excise  on  the  privilege  of  doing 
business  measured  by  income  when  it  could  not  be  sustained  as  a  property 
tax.    Eaton,  Crane  &  Pike  Co.  v.  Commonwealth,  237  Mass.  523  (1921). 

"  Flint  v.  Stone  Tracy  Co.,  220  U.  S.  107,  148-150  (1911);  Zonne  v. 
Minneapolis  Syndicate,  220  U.  S.  187  (1911);  United  States  v.  Emery,  237 
U.  S.  28;   Dawson  v.  Kentucky  Distilleries  etc.  Co.,  255  U.  S.  288   (1921). 

11  Wagner  v.  Covington,  251  U.  S.  95  (1919);  Eaton,  Crane  &  Pike  Co. 
v.   Commonwealth,  237   Mass.  523    (1921). 


sect.  9]        Nature  and  Characteristics  of  Taxation  15 

9.  The  Power  of  Taxation  is  Inherent  in  the  Legislature 

of  a  Sovereign  State 

The  power  of  taxation,  being  essential  to  the  existence  of  a 
sovereign  state,  is  inherent  in  sovereignty  and  does  not  depend 
upon  any  grant  of  power  in  the  constitution,  and  accordingly 
each  state  of  the  Union  possesses  as  a  necessary  attribute  the 
power  to  levy  taxes  without  any  limit  except  as  imposed  by  the 
constitution  itself.  The  provisions  of  the  state  constitutions 
which  relate  to  the  power  of  taxation  do  not  operate  as  grants 
of  the  power  of  taxation  to  the  state  governments  but  constitute 
limitations  upon  a  power  which  would  otherwise  be  without 
limit.1 

Upon  the  customary  division  of  governmental  power  into 
three  classes,  namely  legislative,  executive  and  judicial,  the 
power  of  taxation  is  legislative  and  falls  to  the  legislature  with- 
out special  assignment.2  That  such  an  allocation  of  the  power  of 
taxation  is  universally  recognized  in  the  United  States  is  a  con- 
sequence of  the  struggles  between  King  and  Parliament  over  the 
right  to  levy  taxes  which  were  contemporaneous  with  the  settle- 
ment of  the  American  Colonies,  and  it  finds  expression  in  more 
extreme  form  in  the  provision  found  in  both  the  state  and  the 
federal  constitution  that  bills  for  raising  revenue  shall  originate 
in  the  more  numerous  branch  of  the  legislature.3  The  power 
of  determining  what  money  shall  be  raised  by  taxation  and  what 
shall  be  the  subjects  of  the  taxes  by  which  such  money  shall 
be  raised  is  exclusively  legislative  and  has  no  limit  except 
as  imposed  by  express  constitutional  provisions.  Neither  the  ex- 
ecutive nor  the  judicial  branches  of  the  government  may  exercise 
the  power  of  taxation.4 

1  McCulloch  v.  Maryland,  4  Wheat.  428  (1819);  Nathan  v.  Louisiana,  8 
How.  82  (1848);  Lane  County  v.  Oregon,  7  Wall.  71,  76  (1868);  Humphrey  v. 
Peques,  16  Wall.  244,  249  (1872) ;  Board  of  Liquidation  v.  McComb,  92  U.  S. 
531,  535  (1875);  Transportation  Co.  v.  Wheeling,  99  U.  S.  273,  281  (1878); 
Hoge  v.  Railroad  Co.,  99  U.  S.  348;  United  States  v.  Snyder,  149  U.  S.  210,  214 
(1893);  New  Jersey  Central  R.  R.  Co.  v.  Jersey  City,  209  U.  S.  473  (1908); 
MacLeod  v.  United  States,  229  U.  S.  416  (1913). 

2  Talbot  v.  Janson,  3  Dall.  133,  163  (1795) ;  Ware  v.  Hylton,  3  Dall.  199, 
232  (1796);  Meriwether  v.  Garrett,  102  U.  S.  472,  515  (1880);  Spencer  v. 
Merchant  125  U.  S.  345,  355  (1888). 

3  Infra  §  57. 

4  Rees  v.  Watertown,  19  Wall.  107  (1873);  Reine  v.  Levee  Commissioners, 
19  Wall.  655  (1873);  United  States  v.  Macon  County,  99  U.  S.  582  (1878); 
Meriwether  v.  Garrett,   102  U.  S.  472    (1880). 


16  Taxation    in   Massachusetts  [part  i 

Both  the  executive  and  judicial  branches  of  the  government 
have  however  many  duties  to  perform  in  connection  with  taxa- 
tion. The  governor  recommends  the  sum  to  be  raised  by  tax- 
ation in  his  annual  budget  and  he  may  veto  revenue  bills  in  the 
same  manner  as  any  other  legislation.  The  actual  assessment  of 
property  is  entirely  performed  by  administrative  officials.  The 
judiciary  by  appropriate  proceedings  enforces  the  collection  of 
taxes,  and  on  the  other  hand  protects  the  taxpayer  from  any  un- 
constitutional or  otherwise  unlawful  exercise  of  the  taxing  power 
and  may  even  be  given  authority  to  revise  the  valuation  placed 
upon  property  by  administrative  officials. 

10.  Delegation  of  the  Power  of  Taxation 

The  power  of  taxation  for  state  purposes,  which  is  granted 
to  the  legislature  by  the  constitution,  cannot  be  delegated  by 
the  legislature  to  any  other  officer,  board  or  tribunal.  The  leg- 
islature cannot  invest  any  other  body  with  the  power  to  decide 
upon  the  amount  to  be  raised  by  taxation,  the  property  or  the 
acts,  privileges  or  occupations  to  be  taxed,  or  the  rate  of  taxa- 
tion to  be  imposed.  It  is  for  this  reason  that  statutes  are  of 
doubtful  constitutionality  which  attempt  to  give  an  adminis- 
trative officer  an  unrestrained  discretion  in  adjusting  the  amount 
of  the  tax  in  cases  in  which  the  measure  established  by  statute  is 
inapplicable.1 

A  statute  delegating  to  administrative  officials  the  duty  of 
listing  and  valuing  the  property  subject  to  the  tax  and  assessing 
the  tax  is  however  undoubtedly  constitutional.  So  also  there  is 
no  abdication  of  the  legislative  function  if  the  legislature  enacts 
a  specific  rule  for  fixing  the  rate  of  a  tax,  and  the  rate  may  be 
mathematically  deduced  by  administrative  officials  from  facts 
and  events  occurring  each  year.2  A  statute  is  also  valid  which 
authorizes  an  executive  officer  to  suspend  certain  provisions  of 
the  tax  laws  upon  a  contingency  and  to  declare  when  such  con- 
tingency has  occurred.3  The  power  of  collecting  taxes  may  also 
be  constitutionally  delegated  and  it  is  for  this  reason  that  stat- 

1  The  legislature  cannot  delegate  the  power  of  making  laws.  Opinion 
of  the  Justices,  160  Mass.  586  (1894) ;  Wyeth  v.  Cambridge  Board  of  Health, 
200  Mass.  474,  481  (1909) ;  Boston  V.  Chelsea,  212  Mass.  127  (1912). 

2  Michigan  Central  R.  R.  Co.  v.  Powers,  201  U.  S.  245  (1906). 

3  Field  v.  Clark,  143  U.  S.  649  (1892). 


sect.  10]       Nature  and  Characteristics  of  Taxation  17 

utes  authorizing  the  purchaser  of  a  tax  lien  to  enforce  the  lien 
are  constitutional.4 

The  rule  that  the  power  of  taxation  is  incapable  of  delegation 
is  subject  to  one  universally  recognized  exception,  namely,  that 
the  legislature  may  grant  to  municipal  corporations  the  power 
of  taxation  for  municipal  purposes  to  be  exercised  by  them 
through  the  voters  of  the  municipality  directly  or  through  mu- 
nicipal councils  elected  by  the  people.  The  power  of  the  legis- 
lature to  authorize  municipal  corporations  to  levy  taxes  for  the 
purpose  of  providing  the  necessary  revenue  to  defray  the  ex- 
penses of  their  municipal  government  and  to  pay  for  the  con- 
struction of  public  improvements  within  their  respective  limits 
has  been  exercised  for  so  long  a  time  that  its  existence  is  not  open 
to  dispute.5  It  is  however  generally  considered  that  the  legislature 
cannot  delegate  the  power  of  taxation,  even  for  local  purposes, 
to  any  board  of  officers  not  elected  directly  by  the  people.  This 
rule  however  has  no  application  to  special  assessments,  which 
may  constitutionally  be  imposed  by  appointive  officers.6 

A  municipal  corporation  has  no  inherent  power  to  levy  taxes 
and  can  exercise  only  those  powers  to  tax  which  have  been 
granted  to  it  by  the  legislature;7  but  it  has  been  held  that  the 
grant  of  a  charter  to  a  municipal  corporation  with  the  usual 
powers  and  duties  incident  to  such  bodies  by  necessary  inference 
carries  with  it  the  power  of  taxation,  since  otherwise  it  would  be 
impossible  for  the  municipality  to  exercise  its  powers  and  per- 
form its  duties.8  In  any  event  a  grant  of  power  to  a  municipal 
corporation  to  borrow  money  or  otherwise  incur  financial  obliga- 
tions necessarily  carries  with  it  the  power  to  levy  taxes  to  meet 
the  obligations  thus  incurred.9 

The  grant  of  the  power  of  taxation  to  a  municipal  corporation 
by  the  legislature  of  a  state  does  not  form  such  a  contract  be- 
tween the  state  and  the  municipality  as  is  within  the  protection 
of  the  provision  of  the  constitution  of  the  United  States  which 

4  League  v.  Texas,  184  U.  S.  156  (1902). 

5  United  States  v.  New  Orleans,  98  U.  S.  381  (1878);  Stoutenburgh  v. 
Hennick,  129  U.  S.  141  (1889);  Bradley  v.  Richmond,  227  U.  S.  477  (1913). 

6  Soliah  v.  Heskin.  222  U.  S.  522  (1912). 

7  Duffy  v.  Treasurer  &  Receiver  General.  234  Mass.  42,  47  (1919). 

8  United  States  v.  New  Orleans,  98  U.  S.  381   (1878). 

9  Loan  Association  v.  Topeka,  20  "Wall.  655  (1874);  United  States  v.  New 
Orleans,  98  U.  S.  381  (1878) ;  Ralls  County  Court  v.  United  States.  105  U.  S. 
733  (1881);  Quincy  v.  Jackson,  113  U.  S.  332  (1885);  Lowell  v.  Boston,  111 
Mass.  454  (1873). 


18  Taxation    in   Massachusetts  [part  i 

prohibits  a  state  from  impairing  the  obligation  of  contracts. 
The  conferring  of  such  right  of  taxation  is  an  exercise  by  the  leg- 
islature of  a  public  and  governmental  power.  It  is  the  imparting 
to  the  municipality  of  a  portion  of  the  power  of  the  state,  which 
can  lawfully  be  imparted  to  a  governmental  subdivision  of  the 
state.  But  from  the  very  character  of  the  power  it  cannot  be 
imparted  in  perpetuity,  and  is  always  subject  to  revocation,  mod- 
ification and  control  by  the  legislative  authority  of  the  state.10 
In  Massachusetts  the  power  of  the  legislature  to  withdraw 
the  power  of  taxation  from  the  cities  and  towns  of  the  state  is 
limited  by  the  fact  that  the  existence  of  towns  is  expressly  rec- 
ognized in  the  constitution;  and  the  legislature  has  con- 
sequently no  power  to  abolish  or  to  materially  impair  the  town 
system  of  government  as  practised  in  this  commonwealth  con- 
tinuously from  a  long  time  before  the  Declaration  of  Independ- 
ence until  the  present  time.11  As  a  system  of  town  government 
in  which  the  towns  had  no  power  of  levying  taxes  would  be  a 
mere  shadow  of  the  system  recognized  by  our  constitution,  the 
power  of  the  legislature  to  deprive  the  towns  of  the  power  of 
taxation  altogether  is  open  to  serious  question;  but  the  exemp- 
tion of  one  class  of  property  from  local  taxation  is  not  unconsti- 
tutional when  a  large  field  of  taxation  is  still  left  to  the  munic- 
ipalities.12 

11.   Construction  of  Tax  Laws 

It  is  a  familiar  canon  in  the  interpretation  of  the  tax  laws 
that  they  are  not  to  be  extended  by  construction.1  The  liability 
of  property  to  taxation  depends  upon  the  provisions  of  statutes 
and  no  tax  can  be  sustained  as  within  the  spirit  of  a  statute  if  it  is 
not  covered  by  its  words.2  Tax  laws  are  not  to  be  stretched  beyond 

i°  Williamson  v.  New  Jersey,  130  U.  S.  189  (1889). 

11  Commonwealth  v.  Plaisted,  148  Mass.  375,  384  (1889);  Opinion  of  the 
Justices,  229  Mass.  601,  607   (1918). 

12  Duffy  v.  Treasurer  &  Receiver  General,  234  Mass.  42,  51    (1919). 

i  Gould  v.  Gould,  245  U.  S.  151  (1918) ;  Sewall  v.  Jones,  9  Pick.  412  (1830) ; 
City  National  Bank  v.  Charles  Baker  Co.,  180  Mass.  40  (1901);  Martin  L.  Hall 
Co.  v.  Commonwealth,  215  Mass.  326,  329  (1913);  Attorney  General  v.  Clark, 
222  Mass.  291,  294  (1915);  Tyler  v.  Treasurer  &  Receiver  General,  226  Mass. 
306,  309  (1917);  Hill  v.  Treasurer  &  Receiver  General,  229  Mass.  474  (1918); 
Osgood  v.  Tax  Commissioner,  235  Mass.  88,  90  (1920);  Eaton,  Crane  &  Pike 
Co.   v.   Commonwealth,   237    Mass.  523    (1921). 

2  City  National  Bank  v.  Charles  Baker  Co.,  180  Mass.  40  (1901) ;  Hill  v. 
Treasurer  &  Receiver  General.  229  Mass.  474  (1918) ;  Osgood  v.  Tax  Com- 
missioner, 235  Mass.  88,  90  (1920). 


sect.  11]       Nature  and  Characteristics  of  Taxation  19 

their  reasonable  meaning,  but  rather  in  case  of  doubt  are  to  be 
construed  with  some  strictness.  Nevertheless  the  tax  laws,  like 
all  other  laws,  must  be  construed  with  a  reference  to  the  reasons 
and  principles  of  the  common  law  and  with  a  just  regard  to  the 
subject  matter  to  which  they  apply.  The  general  policy  of  the 
law  is  that  all  property  not  specifically  exempted  shall  be  subject 
to  taxation,  and  when  it  is  contended  that  under  the  law  a  cer- 
tain class  of  property  is  not  subject  to  taxation,  the  policy  of  the 
law  should  be  considered  in  construing  the  statute  in  contro- 
versy.3 But  these  considerations  do  not  authorize  the  court  to 
give  a  forced  and  unnatural  meaning  to  the  language  of  the 
statute.  With  the  greatest  vigilance  which  can  be  exercised, 
some  property  will  find  crevices  in  the  law  through  which  it  will 
escape  taxation.  But  when  such  crevices  are  discovered,  it  is  the 
province  of  the  legislature,  and  not  of  the  court,  to  stop  them.4 

In  the  case  of  a  controversy  over  the  interpretation  of  a  stat- 
ute granting  an  exemption  under  certain  conditions  to  property 
which  is  ordinarily  taxable,  the  situation  is  different  from  a  con- 
troversy over  the  inclusion  of  property  within  the  terms  of  a 
statute  imposing  a  tax.  An  exemption  from  taxation  is  an 
extraordinary  grace  of  the  sovereign  power  and  is  to  be  strictly 
construed.  The  grant  of  exemption  must  be  made  to  appear 
plainly  either  by  the  express  words  or  necessary  intendment  of 
the  statute.5 

In  construing  tax  laws  words  should  be  interpreted  in  their 
popular  meaning  rather  than  in  any  technical  sense.  Tax  laws 
are  enacted  for  practical  ends.  They  must  be  administered  in 
large  part  by  the  plain  citizens  who  are  elected  assessors  from 
time  to  time  in  the  various  municipalities.  They  should  be  con- 
strued and  interpreted  so  far  as  possible  so  as  to  be  susceptible 
of  easy  comprehension  and  not  likely  to  become  pitfalls  for  the 
unwary.6 

In  determining  the  meaning  of  a  doubtful  statute  the  prac- 

3  Swett  v.  Boston,  18  Pick,  123  (1836) ;  Smith  v.  Northampton  Bank,  4 
Cush.t12  (1839). 

4  Swett  v.  Boston,  18  Pick.  123  (1836). 

5  Redemptorist  Fathers  v.  Boston,  129  Mass.  178  (1880) ;  Third  Congrega- 
tional Society  v.  Springfield,  147  Mass.  396  (1888);  Milford  v.  Worcester 
County  Commissioners,  213  Mass.  162  (1912);  Boston  Lodge  of  Elks  v.  Boston, 
217  Mass.  176  (1914) ;  Sullivan  v.  Ashfield,  227  Mass.  24  (1917) ;  Wheelwright 
v.  Tax  Commissioner,  235  Mass.  584  (1920). 

6  Hemenway  v.  Milton,  217  Mass.  230   (1914). 


20  Taxation   in   Massachusetts  [part  i 

tical  construction  put  upon  the  law  by  those  charged  with  its 
enforcement  through  many  years  is  a  circumstance  sometimes 
entitled  to  considerable  weight;7  but  when  a  statute  clearly  re- 
quires the  taxation  of  a  certain  class  of  property,  it  is  imma- 
terial that  no  tax  has  been  levied  thereon  in  preceding  years.  It 
is  only  when  a  statute  is  of  doubtful  import  and  the  practice  of 
the  officers  charged  with  the  duty  of  assessing  taxes  has  been 
long  continued  and  acquiesced  in  by  all  parties  interested  that 
it  can  be  resorted  to  in  aid  of  the  construction  of  the  statute.8 

12.   Limitations  upon  the  Taxing  Power  of  the  States  in 
the  Constitution  of  the  United  States 

The  power  of  taxation  of  each  state  over  persons,  property, 
privileges,  occupations  and  acts  within  its  jurisdiction  is  limited 
or  restricted  by  a  number  of  different  provisions  in  the  consti- 
tution of  the  United  States.  The  provisions  which  specifically 
limit  the  power  of  taxation  in  the  states  are  as  follows: 

(1)  No  state  may  lay  duties  on  exports  or  imports  (Art.  I, 
Section  10). 

(2)  No  state  without  the  consent  of  Congress  may  lay  any  duty 
of  tonnage  (Art.  I,  Section  10). 

The  provisions  which  limit  the  governmental  powers  of  the 
states  generally  and  are  applicable  to  taxation  as  well  as  to 
other  powers  are  as  follows: 

(1)  No  state  shall  pass  any  law  impairing  the  obligation  of  con- 
tracts (Art.  I,  Section  10). 

(2)  The  citizens  of  each  state  shall  be  entitled  to  all  privileges 
and  immunities  of  citizens  in  the  several  states     (Art.  IV,  Section  2) . 

(3)  All  treaties  made  under  the  authority  of  the  United  States 
shall  be  the  supreme  law  of  the  land  (Art.  VI) . 

(4)  No  state  shall  deprive  any  person  of  life,  liberty  or  property 
without  due  process  of  the  law,  nor  deny  to  any  person  within  its 
jurisdiction  the  equal  protection  of  the  laws  (Amendment  14). 

7  Tyler  v.  Treasurer  &  Receiver  General,  226  Mass.  306  (1917).  The  prac- 
tice of  a  single  year  is  of  no  materiality,  Knights  v.  Treasurer  &  Receiver 
General,  237   Mass.  493    (1921). 

8  Attorney  General  v.  Barney.  211  Mass.  134  (1912);  A.  J.  Tower  Co.  v. 
Commonwealth,  223  Mass.  371,  375  (1916);  Mutual  Benefit  Life  Insurance  Co. 
v.  Commonwealth,  227  Mass.  63  (1917). 


sect.  13]     Express  Limitations  of  Federal  Constitution  21 

The  power  of  taxation  in  the  several  states  is  further  re- 
stricted by  implication  in  the  constitution  of  the  United  States 
in  the  following  manner : 

(1)  No  state  may  tax  property  or  agencies  of  the  United  States. 

(2)  No  state  may  impose  a  burden  on  foreign  or  interstate 
commerce. 


EXPRESS   LIMITATIONS   OF  THE   FEDERAL 

CONSTITUTION 

13.   Duties  on  Imports  and  Exports 
The  constitution  of  the  United  States  contains  in  Article  I, 
Section  10,  the  following  provision : 

No  State  shall,  without  the  consent  of  Congress,  lay  any  imposts 
or  duties  on  imports  or  exports  except  what  may  be  absolutely  neces- 
sary for  executing  its  inspection  laws ;  and  the  net  produce  of  all  duties 
and  imposts,  laid  by  any  State  on  imports  or  exports,  shall  be  for  the 
use  of  the  Treasury  of  the  United  States;  and  all  such  laws  shall  be 
subject  to  the  revision  and  control  of  the  Congress. 

Imports  and  exports  within  the  meaning  of  this  clause  in- 
clude only  property  arriving  in  the  United  States  or  sent  there- 
from, from  or  to  a  foreign  country,  and  this  clause  accordingly 
does  not  apply  to  goods  sent  from  one  state  to  another,1  to  pas- 
sengers travelling  from  one  state  to  another,2  or  to  passengers 
entering  the  United  States.3  It  is  not  competent  for  a  state  to 
tax  imported  goods  until  they  have  lost  their  character  as  im- 
ports after  arriving  at  their  destination  and  becoming  mingled 
with  the  other  property  in  the  state.4  Such  mingling  is  effected 
by  their  being  taken  from  their  original  packages,5  sold,6  or  of- 

1  Woodruff  v.  Parham,  8  Wall.  123  (1868) ;  Brown  v.  Houston,  114  U.  S. 
622  (1885);  Coe  v.  Errol,  116  U.  S.  527  (1886);  Patapsco  Guano  Co.  v.  Board 
of  Agriculture,  171  U.  S.  350  (1898) ;  American  Steel  etc.  Co.  v.  Speed,  192  U.  S. 
500   (1904). 

2  Crandall  v.  Nevada,  6  Wall.  40  (1867).  It  was  held  however  that  a  tax  on 
passengers  leaving  or  passing  through  the  state  while  not  obnoxious  as  a  tax 
on  exports  was  objectionable  as  tending  to  embarrass  the  legitimate  opera- 
tions of  officers  of  the  United  States. 

3  People  v.  Compagnie  Generale  Transatlantique.  107  U.  S.  61   (1882). 

*  Brown  v.  Maryland,  12  Wheat.  441  (1827) ;  Low  v.  Austin,  13  Wall.  33 
(1871). 

5  May  v.  New  Orleans,  178  U.  S.  502  (1900).  The  original  package  is 
the  case,  box  or  bale  in  which  the  articles  are  packed  for  transportation,  and  no 
single  article  therein,  though  separately  wrapped,  is  an  original  package.  May 
v.  New  Orleans,  178  U.  S.  496  (1900). 

6  Waring  v.  Mobile,  8  Wall.  110  (1868). 


22  Taxation    in   Massachusetts  [part  i 

fered  for  sale.  Goods  in  a  state  being  manufactured  or  prepared 
for  export  are  subject  to  taxation  by  the  state  until  they  have 
started  on  their  ultimate  journey  to  a  foreign  country  or  have 
been  committed  to  the  carrier  for  the  purpose  of  such  a  journey.8 
Capital  continuously  invested  in  goods  in  export  is  taxable  by 
the  state  if  it  was  in  the  form  of  money  on  the  day  when  the  tax 
was  assessed.9 

It  is  clearly  unconstitutional  for  a  state  to  require  a  license 
for  the  sale  of  imported  goods,10  or  to  attempt  to  make  an  excise, 
imposed  on  sales  generally,  applicable  to  the  sale  of  foreign  goods 
in  the  original  package  by  the  person  who  imported  them.11  A 
stamp  tax  on  bills  of  lading  so  far  as  it  applies  to  bills  of  lading 
upon  goods  sent  to  a  foreign  country  is  objectionable  as  a  duty 
upon  exports,12  but  no  such  objection  is  open  to  a  stamp  tax 
upon  bills  of  exchange.13  A  state  law  imposing  pilotage  fees  is 
not  a  duty  upon  imports  or  exports.14 

A  legitimate  inspection  law  may  be  enforced  by  imposing  a 
fee  for  inspection,  and  even  if  such  charge  is  a  duty  on  imports 
or  exports  it  is  within  the  exception  contained  in  the  clause  of 
the  constitution  now  under  consideration.15  The  right  of  in- 
spection is  not  based  upon  the  theory  that  the  articles  to  be  in- 
spected are  dangerous  or  noxious,  but  rests  upon  the  power  of 
the  state  to  see  that  articles  exported  or  imported  are  fit  for 
use 16  and  packed  in  such  a  way  that  they  may  be  subsequently 
identified.17 

The  exception  in  this  clause,  like  the  rule  itself,  applies  only 
to  property,  and  a  state  tax  upon  immigrants  cannot  be  justified 
as  an  "inspection  law."18  As  far  as  the  size  of  the  inspection  fee 
is  concerned,  a  state  statute  will  not  be  held  invalid  unless  the 
charge  is  so  excessive  as  to  clearly  denote  bad  faith. 


19 


»  American  Steel  Co.  v.  Speed,  192  U.  S.  520  (1904). 

8  Coe  v.  Errol,  116  U.  S.  577  (1886). 

9  New  York  v.  Taxes  etc.  Commissioners,  104  U.  S.  466  (1881). 

10  Brown  v.  Maryland,  12  Wheat.  441  (1827). 

11  Cook  v.  Pennsylvania,  97  U.  S.  573  (1878). 

12  Almy  v.  California,  24  How.  174  (1860). 

13  Nathan  v.  Louisiana,  8  How.  81  (1850). 

14  Cooley  v.  Board  of  Wardens,  12  How.  313  (1851). 

15  Turner  v.  Maryland,  107  U.  S.  38,  57   (1882). 

16  Bowman  v.  Chicago,  etc..  R.  R.  Co.,  125  U.  S.  488  (1887). 
«  Turner  v.  Maryland,  107  U.  S.  38  (1882). 

18  People  v.  Compagnie  Generale  Transatlantique,  107  U.  S.  63  (1882). 
»  Patapsco  Guano  Co.  v.  Board  of  Agriculture,  171  U.  S.  350  (1898). 


sect.  14]     Express  Limitations  of  Federal  Constitution  23 

14.   Duties  of  Tonnage 

The  constitution  of  the  United  States  contains  in  Article  I, 
Section  10,  the  following  provision : 

"No  state  shall,  without  the  consent  of  Congress,  lay  any  duty 
of  tonnage.  .  .  ." 

A  duty  of  tonnage  is  a  charge  upon  a  vessel  according  to  its 
size  or  capacity,  for  the  privilege  of  navigating  the  waters  of  a 
state  or  of  entering  or  leaving  a  port  therein,  and  any  such 
charge  is  forbidden  by  this  clause  of  the  constitution,1  even  if 
the  vessel  so  taxed  belongs  to  citizens  of  the  state  imposing  the 
tax,2  and  plies  only  within  the  waters  of  the  state.3 

A  tax  upon  vessels  as  property  imposed  by  the  state  in  which 
they  belong  and  based  upon  their  value  as  property  and  not  upon 
their  capacity  is  not  a  duty  of  tonnage  and  is  not  obnoxious  to 
this  clause  of  the  constitution.4  So  also  a  municipal  ferry  license 
fee  not  graduated  by  the  size  of  the  ferry  boats  is  not  a  duty  of 
tonnage.5  On  the  other  hand  a  fee  for  the  use  of  services  fur- 
nished to  vessels  by  the  public  authorities,  though  graded  in  ac- 
cordance with  the  capacity  of  the  vessel,  is  not  a  duty  of  tonnage, 
because  it  is  not  a  tax  of  any  description ;  but  a  tonnage  tax  can- 
not be  imposed  under  the  guise  of  such  a  charge.  Thus  a  fee  for 
the  use  of  a  wharf  proportioned  to  the  size  of  the  vessel  using  it 
is  a  wharfage  charge,  not  a  tonnage  tax,  and  it  is  not  made  a  tax 
by  the  circumstance  that  the  wharf  used  belongs  to  a  municipal- 
ity,6 or  even  that  the  municipality  has  the  exclusive  right  to  erect 
wharves  within  its  limits.7  A  charge  imposed  whether  a  vessel 
ties  up  to  a  wharf  or  not  cannot  however  be  sustained  as  a  wharf- 
age charge.8    A  pilotage  fee  is  not  a  tonnage  tax,9  but  a  state 

1  Southern  Steamship  Co.  v.  Portwardens,  6  Wall.  31  (1867) ;  State  Tonnage 
Tax  Cases,  12  Wall,  210  (1870);  Inman  Steamship  Co.  v.  Tinker,  94  U.  S.  243 
(1876);  Huse  v.  Glover,  119  U.  S.  549  (1886). 

2  State  Tonnage  Tax  Cases,  12  Wall.  210  (1870) ;  Wheeling  etc.  Trans- 
portation  Co.  v.   Wheeling,   99   U.   S.   273    (1878). 

3  State  Tonnage  Tax  Cases,  12  Wall.  210  (1870). 

4  Wheeling  Transportation  Co.  v.  Wheeling,  99  U.  S.  283   (1878). 

5  Wiggins  Ferry  Co.  v.  St.  Louis,  107  U.  S.  365  (1882). 

«  Northwestern  Union  Packet  Co.  v.  St.  Louis,  100  U.  S.  427  (1879); 
Parkersburg,  etc.,  Transportation  Co.  v.  Parkersburg,  107  U.  S.  696  (1882); 
Onachita  Packet  Co.  v.  Aiken,  121  U.  S.  448  (1886). 

7  Keokuk  Northern  Line  Packet  Co.  v.  Keokuk,  95  U.  S.  84  (1877). 

8  Cannon  v.  New  Orleans.  20  Wall.  580  (1874).  , 

9  Cooley  v.  Board  of  Wardens,  12  How.  313  (1851).  ' 


24  Taxation   in   Massachusetts  [part  i 

statute  imposing  a  harbor  master's  fee  on  every  vessel  entering 
a  port  whether  the  harbor  master  performs  any  service  or  not 
is  void  as  a  tonnage  tax.10  A  toll  exacted  by  the  state  upon  ves- 
sels in  proportion  to  tonnage  for  passing  through  waterways 
made  navigable  by  the  state  is  not  a  tonnage  tax,11  and  the  same 
is  true  of  the  quarantine  fee  imposed  as  a  charge  for  actual  ser- 
vice;12 but  a  tonnage  tax  imposed  to  pay  the  expenses  of  the 
quarantine  system  of  a  state  is  not  valid.13 

15.   Impairment  of  the  Obligation  of  Contracts 

The  constitution  of  the  United  States  provides  in  Article  I, 
Section  10,  that  no  state  shall  pass  any  law  impairing  the  obliga- 
tion of  contracts.  This  provision  affects  and  limits  the  taxing 
powers  of  the  states  in  a  number  of  different  ways.  Thus  while 
it  is  generally  considered  that  there  is  nothing  in  this  provision 
which  prohibits  a  state  from  taxing  its  own  bonds  as  property 
in  the  hands  of  individual  owners  of  the  bonds,  where  the  bonds 
were  not  declared  to  be  tax  exempt  when  issued,  yet  it  is  well 
settled  that  such  a  tax  cannot  be  enforced  by  withholding  the 
amount  of  the  tax  from  the  interest  paid  on  the  bonds.1  When 
it  is  provided  in  a  statute  under  authority  of  which  the  bonds 
of  a  state  are  issued  that  the  coupons  or  interest  warrants  on  the 
bonds  shall  be  received  at  their  face  value  in  the  payment  of  all 
taxes  due  to  the  state,  such  a  provision  cannot  be  constitution- 
ally repealed  after  the  bonds  are  issued.2 

A  tax  itself  is  not  a  contractual  obligation  and  a  state  by  as- 
sessing and  collecting  a  tax  which  under  the  laws  then  in  force 
is  imposed  annually  does  not  impliedly  contract  with  the  tax- 

10  Southern  Steamship  Co.  v.  Portwardens,  6  Wall.  31    (1867). 

11  Huse  v.  Glover,  119  U.  S.  547  (1886). 

12  Morgan's  Steamship  Co.  v.  Louisiana,  118  U.  S.  463  (1885). 

13  Peette  v.  Morgan,  19  Wall.  582   (1873). 

1  Murray  v.  Charleston,  96  U.  S.  432  (1877);  Hartman  v.  Greenhow,  102 
U.  S.  672  (1880). 

2  Woodruff  v.  Trapnall,  10  How.  190  (1850);  Furman  v.  Nichol.  8  Wall. 
44  (1868);  State  v.  Stoll,  17  Wall.  425  (1873);  Hartman  v.  Greenhow,  102  U.  S. 
672  (1880);  Poindexter  v.  Greenhow,  114  U.  S.  270  (1884);  McGahey  v.  Vir- 
ginia, 172  U.  S.  102  (1890).  A  bond-holder  cannot  by  writ  of  mandamus  compel 
the  state  authorities  to  accept  the  coupons,  Antoni  v.  Greenhow,  107  U.  S.  769 
(1882),  but  he  may  tender  the  coupons  in  payment  of  his  tax  and  subsequently 
resist  in  court  any  proceedings  to  collect  the  tax  in  money,  and  if  the  officers 
of  the  state  attempt  to  enforce  payment  of  the  tax  by  summary  proceedings 
he  may  recover  darrfages  from  them  as  tortfeasors.  Poindexter  v.  Greenhow, 
114  U.  S.  270  (1884);  McGahey  v.  Virginia,  172  U.  S.  102  (1890). 


sect.  15]     Express  Limitations  of  Federal  Constitution  25 

payer  to  carry  on  its  governmental  activities  for  another  year 
without  calling  upon  him  for  another  contribution.  So  also  the 
payment  of  an  excise  for  the  privilege  of  performing  a  certain 
act  or  engaging  in  a  certain  occupation  is  not  a  contract  that 
another  excise  will  not  be  imposed  upon  the  same  privilege. 
Whenever  the  public  exigencies  require  additional  funds  a  new 
tax  may  be  levied  upon  the  same  property  or  the  same  privilege 
without  violating  any  constitutional  rights  of  the  taxpayer.3 

There  is  another  condition  under  which  the  constitutional 
provision  now  under  consideration  has  been  invoked  so  as  to  re- 
strict the  power  of  a  state  legislature  over  the  laws  relating 
to  taxation,  though  happily  never  in  Massachusetts.  When  a 
municipal  corporation  incurs  an  indebtedness  by  authority  of  the 
legislature  and  the  statutes  in  force  at  the  time  provide  for  the 
assessment  and  collection  of  taxes  sufficient  to  meet  the  indebt- 
edness when  it  falls  due,  a  subsequent  statute  amending  or  re- 
pealing the  statutes  in  such  a  way  as  to  substantially  impair  the 
ability  of  the  municipal  corporation  to  pay  the  debt  impairs  the 
obligation  of  the  contract  and  is  unconstitutional  and  void.  So  far 
as  the  creditors  are  concerned  the  old  statutes  are  still  in  force, 
and,  upon  the  application  of  a  judgment  creditor  who  has  been 
unable  to  enforce  his  judgment,  a  federal  court  will  issue  a  writ 
of  mandamus  directing  the  local  authorities  to  collect  taxes  un- 
der the  statutes  in  force  when  the  debt  was  incurred.4  If  the 
municipality  which  issued  the  bonds  has  been  annexed  to  or 
succeeded  by  another,  the  court  will,  by  writ  of  mandamus,  di- 
rect the  officers  of  the  latter  to  pay  the  debts  of  the  former,  and 
if  its  taxing  powers  are  less  extensive  than  those  of  the  munic- 
ipality which  incurred  the  debt,  the  statutes  authorizing  the 
assessment  of  taxes  in  force  with  respect  to  such  municipality 
when  the  debt  was  incurred  will  be  treated  as  still  in  force  and 
the  officers  of  the  new  corporation  directed  to  levy  a  tax  there- 
under.5 When  however  the  state  itself  is  the  debtor,  such  a 
remedy  is  not  available,  as  a  writ  of  mandamus  in  such  a  case 

3  Home  Insurance  Co.  v.  Augusta,  93  U.  S.  116  (1876);  Patton  v.  Brady, 
184  U.  S.  608  (1902). 

4  Von  Hoffman  v.  Quincy,  4  Wall.  535  (1866);  Galena  v.  Amy,  5  Wall. 
705  (1866);  Edwards  v.  Kearzey,  96  U.  S.  595  (1877);  Wolff  v.  New  Orleans, 
103  U.  S.  358  (1880);  Louisiana  v.  Pilsbury,  105  U.  S.  278  (1881);  Ralls  County 
v.  United  States,  105  U.  S.  733  (1881);  Seibert  v.  Lewis.  122  U.  S.  284  (1877). 

5  Mount  Pleasant  v.  Beckwith,  100  U.  S.  514  (1879);  Mobile  v.  United 
States,  116  U.  S.  289  (1886). 


26  Taxation    in   Massachusetts  [part  i 

would  be  in  effect  a  suit  against  the  state,  and  a  state  cannot 
be  sued  without  its  consent;6  and  a  state,  if  it  really  desires  to 
aid  one  of  its  municipalities  in  avoiding  its  obligations,  can  de- 
prive the  creditors  of  their  remedy  by  repealing  the  municipal 
charter,  abolishing  the  municipality  and  not  creating  any  corpor- 
ate entity  in  its  place.7 

16.   Exemption  from  Taxation  as  a  Contract  Protected 

by  the  Constitution 

Although  it  is  recognized  with  respect  to  governmental  pow- 
ers other  than  taxation  that  the  legislature  cannot  even  by  ex- 
press words  enter  into  a  binding  contract  not  to  exercise  its  power 
to  the  full  extent  authorized  by  the  constitution,1  it  was  de- 
cided by  the  supreme  court  of  the  United  States  more  than  a 
hundred  years  ago  that  a  legislative  enactment  exempting  prop- 
erty from  taxation  for  a  definite  or  indefinite  period  in  the  future 
may  constitute  a  contract,  and  that  consequently  a  repeal  of  the 
statute  by  which  the  exemption  was  granted  or  an  attempt  by 
subsequent  legislation  to  tax  the  property  thus  exempted  would 
violate  the  contract  clause  of  the  federal  constitution.2 

The  soundness  of  this  rule  has  been  frequently  questioned,3 
but  the  rule  itself  has  been  consistently  maintained.4  The  dis- 
favor in  which  it  is  held  has  however  found  expression  in  the 
growth  of  a  number  of  limitations  or  qualifications  upon  the  rule 
and  it  is  not  unlikely  that  the  rule  itself  may  be  eventually 
abandoned. 

6  Louisiana  v.  Jumel,  107  U.  S.  711  (1882). 

7  Meriwether  v.  Garrett,  102  U.  S.  472  (1880). 

1  See  Nichols,  Eminent  Domain,  2d  ed.,  sec.  22. 

2  New  Jersey  v.  Wilson,  7  Cranch.  164  (1812). 

3  See  dissenting  opinions  in  Piqua  Bank  v.  Knoop,  16  How.  369  (1853); 
Dodge  v.  Woolsey,  18  How.  331  (1855) ;  Washington  University  v.  Rouse,  8  Wall. 
430  (1869). 

4  Armstrong  v.  Athens  County,  16  Pet.  281  (1842) ;  Gordon  v.  Appeal  Tax 
Court,  3  How.  133  (1845);  Piqua  Bank  v.  Knoop,  16  How.  369  (1853);  Dodge 
v.  Woolsey,  18  How.  331  (1855);  McGee  v.  Mathias,  4  Wall.  143  (1866); 
Washington  University  v.  Rouse,  8  Wall.  430  (1869) ;  Wilmington  etc.  R.  R.  Co. 
v.  Reid,  13  Wall.  264  (1871) ;  Pacific  R.  R.  Co.  v.  Maguire.  20  Wall.  36  (1873) ; 
Mackall  v.  Chesapeake  etc.  Canal  Co.,  94  U.  S.  308  (1876) ;  Asylum  v.  New 
Orleans,  105  U.  S.  362  (1881);  Stearns  v.  Minnesota,  179  U.  S.  223  (1900); 
Wright  v.  Georgia  Banking  Co.,  216  U.  S.  420  (1909) ;  Choate  v.  Trapp,  224 
U.  S.  665  (1912);  Wright  v.  Central  of  Georgia  R.  R.  Co.,  236  U.  S.  674  (1914). 
The  same  rule  applies  td  a  charter  provision  fixing  the  taxation  of  a  corporation 
in  a  limited  or  special  manner;  if  such  a  charter  contains  the  attributes  of  a 
contract  it  must  be  respected,  Piqua  Bank  v.  Knoop,  16  How.  369  (1853); 
Mobile  etc.  R.  R.  Co.  v.  Tennessee,  153  U.  S.  486  (1894). 


sect.  16]     Express  Limitations  of  Federal  Constitution  27 

In  the  first  place,  to  constitute  a  binding  contract  there  must 
be  a  consideration,  and  a  voluntary  concession  or  grant  by  the 
legislature  cannot  be  the  foundation  of  a  contract.5  But  a  con- 
sideration can  be  found  not  only  in  the  giving  up  of  valuable 
property  rights,6  but  even  in  the  acceptance  by  a  corporation  of 
the  charter  in  which  the  exemption  is  contained  whenever  the 
charter  requires  the  assumption  by  the  grantee  of  public  or  quasi 
public  duties,  as  in  the  case  of  a  railroad  or  other  public  service 
corporation,7  a  public  charitable  corporation,8  or  even  of  a  bank.9 

In  the  second  place  the  grant  of  an  exemption,  to  constitute 
a  contract,  must  be  special;  a  corporation  chartered  at  a  time 
when  by  the  general  laws  then  in  force  it  would  not  be  subject  to 
taxation  cannot  insist  that  so  far  as  it  is  concerned  the  general 
laws  shall  forever  remain  unchanged.10 

In  the  third  place,  a  contractual  exemption  from  taxation  will 
never  be  implied,  and  can  rest  only  upon  the  express  words  of 
the  statute;11  and  even  if  a  contract  of  exemption  is  established, 

5  Christ  Church  v.  Philadelphia,  24  How.  300  (1860);  Tucker  v.  Ferguson, 
22  Wall.  527  (1874);  West  Wisconsin  R.  R.  Co.  v.  Trempealeau  County,  93 
U.  S.  595  (1876) ;  Grand  Lodge  v.  New  Orleans,  166  U.  S.  143  (1897) ;  Seton 
Hall  College  v.  South  Orange,  242  U.  S.  100  (1916) ;  Troy  Union  R.  R.  Co.  v. 
Mealy,  254  U.  S.  47  (1920).  For  this  reason  a  grant  of  exemption  to  a  corpora- 
tion after  it  has  been  incorporated  is  ordinarily  not  a  contract;  but  when  an 
exemption  is  granted  in  an  amendment  to  a  charter  and  at  the  same  time 
additional  duties  and  obligations  are  imposed,  if  the  corporation  accepts  the 
amendment  the  exemption  is  protected  by  the  constitution,  Tomlinson  v. 
Jessup,  15  Wall  454  (1872). 

6  New  Jersey  v.  Wilson,  7  Cranch.  164  (1812) ;  Gordon  v.  Appeal  Tax  Court, 
3  How.  133  (1845) ;  Choate  v.  Trapp,  224  U.  S.  665  (1912) ;  Gleason  v.  Wood, 
224  U.  S.  679  (1912) ;  English  v.  Richardson,  224  U.  S.  680  (1912). 

7  Piqua  Bank  v.  Knoop,  16  How.  369  (1853). 

s  Home  of  the  Friendless  v.  Rouse,  8  Wall.  430  (1869). 

9  Farrington  v.  Tennessee,  95  U.  S.  679  (1877). 

10  Providence  Bank  v.  Billings,  4  Pet.  514,  563  (1830) ;  East  Saginaw  Salt 
Mfg.  Co.  v.  East  Saginaw,  13  Wall.  373  (1871);  Welch  v.  Cook,  97  U.  S.  541 
(1878);  Wisconsin  etc.  R.  R.  Co.  v.  Powers,  191  U.  S.  379  (1903). 

11  Providence  Bank  v.  Billings,  4  Pet.  514  (1830) ;  North  Missouri  R.  R. 
Co.  v.  Maguire,  20  Wall.  46  (1873);  Erie  R.  R.  Co.  v.  Pennsylvania,  21  Wall. 
492  (1874);  Bailey  v.  Maguire,  22  Wall.  215  (1874);  Memphis  Gas  Light  Co. 
v.  Shelby  County  Taxing  District,  109  U.  S.  398  (1883) ;  New  Orleans  etc.  R.  R. 
Co.  v.  New  Orleans,  143  U.  S.  192  (1892);  Phoenix  Insurance  Co.  v.  Tennessee, 
161  U.S.  174  (1896). 

The  grant  of  a  franchise  does  not  contribute  an  agreement  that  the 
franchise  shall  not  be  taxed  as  property,  Providence  Bank  v.  Billings,  4  Pet. 
514  (1830);  New  Orleans  etc.  R.  R.  Co.  v.  New  Orleans,  143  U.  S.  192  (1892); 
even  if  a  valuable  consideration  has  been  paid  for  the  franchise,  Gordon  v. 
Appeal  Tax  Court,  3  How.  133  (1845)  ;  Savannah  etc.  R.  R.  Co.  v.  Savannah, 
198  U.  S.  392  (1905) ;  New  York  v.  State  Board  of  Tax  Commissioners,  199  U.  S. 
1,11  (1905) ;  St.  Louis  v.  United  R.  R.  Co,  210  U.  S.  266  (1908) ;  but  when  the 


28  Taxation   in   Massachusetts  [part  i 

it  will  be  construed  strictissimi  juris  and  never  be  extended  by 
implication  in  the  slightest  degree.12 

In  the  fourth  place,  an  exemption  from  taxation  will  not  be 
held  to  be  assignable  unless  expressly  made  so  by  the  legisla- 
ture;13 and  if  the  corporation  to  which  the  exemption  was  granted 
assigns  its  franchise  and  all  its  assets  to  another  corporation  and 
gives  up  its  corporate  existence,  the  exemption  will  be  lost.  A 
merger  with  other  corporations  in  which  the  corporate  existence 
and  identity  of  the  grantee  of  the  exemption  is  not  given  up  will 
not  however  annul  the  exemption.1 


14 


state  has  granted  a  franchise  for  a  valuable  consideration  it  cannot  tax  the 
grantee  of  the  franchise  for  the  privilege  of  exercising  it,  Boise  etc.  Water  Co.  v. 
Boise  City,  230  U.  S.  84  (1913). 

A  grant  to  one  corporation  of  the  same  rights,  powers  and  privileges  as 
are  enjoyed  by  another  corporation  does  not  include  an  exemption  from  taxa- 
tion enjoyed  by  such  other  corporation,  Memphis  etc.  R.  R.  Co.  v.  Gaines,  97 
U.  S.  697  (1878);  Wright  v.  Georgia  R.  R.  etc.  Co.,  216  U.  S.  420  (1910).  A 
charter  provision  expressly  establishing  the  taxes  to  be  paid  by  the  corporation 
chartered,  but  containing  no  express  exemption  from  other  or  greater  taxes, 
does  not  protect  the  corporation  from  different  or  additional  taxes,  Ohio  Ins. 
etc.  Co.  v.  Debolt,  16  How.  416  (1853)  ;  Delaware  R.  R.  Tax,  18  Wall.  206 
(1873);  Erie  R.  R.  Co.  v.  Pennsylvania,  21  Wall.  492  (1874);  Home  Insurance 
Co.  v.  Augusta,  93  U.  S.  116  (1876) ;  Wiggins  Ferry  Co.  v.  East  St.  Louis,  107 
U.  S.  365  (1882). 

12  Bailey  v.  Maguire,  22  Wall.  215  (1874) ;  Vicksburg  etc.  R.  R.  Co.  v. 
Dennis,  116  U.  S.  231  (1886) ;  Chicago  etc.  R.  R.  v.  Guffey,  120  U.  S.  569  (1886); 
Covington  v.  Kentucky,  173  U.  S.  231   (1898). 

13  Armstrong  v.  Athens  County,  16  Pet.  281  (1842) ;  Keokuk  &  Western 
R.  R.  Co.  v.  Missouri,  152  U.  S.  301  (1894) ;  Rochester  R.  R.  Co.  v.  Rochester, 
205  U.  S.  236  (1907);  Jetton  v.  University  of  the  South,  208  U.  S.  489  (1907); 
Morris  Canal  etc.  Co.  v.  Baird,  239  IT.  S.  126  (1915).  Thus  an  exemption  will 
not  pass  to  the  purchaser  upon  the  voluntary  sale  of  all  the  franchises  and 
property  of  a  corporation,  Memphis  etc.  R.  R.  Co.  v.  Gaines,  97  U.  S.  697 
(1878) ;  Memphis  etc.  R.  R.  Co.  v.  Railroad  Commissioners,  112  U.  S.  609  (1884) ; 
Chesapeake  etc.  R.  R.  Co.  v.  Miller,  114  U.  S.  176  (1885);  Picard  v.  East 
Tennessee  etc.  R.  R.  Co.,  130  U.  S.  637  (1889) ;  Gulf  etc.  R.  R.  Co.  v.  Hewes, 
183  U.  S.  66  (1901) ;  or  upon  sale  by  a  receiver  under  order  of  court,  Mercantile 
Bank  v.  Tennessee,  161  U.  S.  161  (1896);  or  upon  foreclosure  of  a  mortgage, 
Trask  v.  Maguire,  18  Wall.  391  (1873);  Morgan  v.  Louisiana,  93  U.  S.  217 
(1876) ;  East  Tennessee  etc.  R.  R.  Co.  v.  Hamblen  County,  102  U.  S.  273  (1880) ; 
Wilson  v.  Gaines,  103  U.  S.  417  (1880) ;  Louisville  etc.  R.  R.  Co.  v.  Palmes, 
109  U.  S.  244  (1883) ;  New  York  v.  Cook,  148  U.  S.  397  (1893).  A  lease  of  all 
the  property  and  franchises  of  a  corporation  will  not  however  extinguish  the 
exemption  therein,  Wright  v.  Central  of  Georgia  R.  R.  Co.,  236  U.  S.  674 
(1915) ;  Wright  v.  Louisville  etc.  R.  R.  Co.,  236  U.  S.  687  (1915). 

14  Philadelphia  etc.  R.  R.  Co.  v.  Maryland,  10  How.  425  (1850) ;  Tomlinson 
v.  Branch,  15  Wall.  460  (1872);  Delaware  Railroad  Tax,  18  Wall.  206  (1873); 
Central  R.  R.  etc.  Co.  v.  Georgia,  92  U.  S.  665  (1875);  Chesapeake  etc. 
R.  R.  Co.  v.  Virginia,  94  U.  S.  718  (1876) ;  Green  County  v.  Conners,  109  U.  S. 
104  (1883) ;  Tennessee  v.  Whitworth,  117  U.  S.  139  (1886) ;  Keokuk  etc.  R.  R. 
Co.  v.  Missouri,  152  U.  S.  301  (1894) ;  Wright  v.  Georgia  R.  R.  etc.  Co.,  216 
U.  S.  420   (1910).     If  however  the   consolidation   effects  a   dissolution  of  the 


sect.  16]     Express  Limitations  of  Federal  Constitution  29 

In  the  fifth  place,  it  is  well  settled  that  when,  by  the  provi- 
sions of  the  constitution  or  of  the  general  laws  in  force  at  the 
time  a  special  charter  of  exemption  was  granted,  the  charters  of 
all  corporations  were  issued  subject  to  alteration,  amendment  or 
repeal  by  the  legislature,  the  exemption  may  be  repealed.15  As 
all  charters  of  incorporation  issued  in  Massachusetts  since  1831 
have  been  granted  subject  to  alteration,  amendment  or  repeal, 
there  are  very  few  special  exemptions  in  this  state  which  are 
beyond  the  power  of  the  legislature  to  withdraw.16 

In  the  sixth  place,  no  contract  can  arise  from  an  unconstitu- 
tional law;  and  when  the  power  of  the  legislature  to  grant  ex- 
emptions from  taxation  is  limited  by  the  provisions  of  the  state 
constitution,  no  grant  of  exemption  will  constitute  a  valid  con- 
tract even  if  made  for  a  valuable  consideration  unless  it  was  out- 
side the  constitutional  limitations.17 


existing  corporations,  their  exemptions  are  lost,  Shields  v.  Ohio,  95  U.  S.  319 
(1877);  Maine  Central  R.  R.  Co.  v.  Maine,  96  U.  S.  499  (1877);  Atlantic  etc. 
R.  R.  Co.  v.  Georgia,  98  U.  S.  359  (1878);  St  Louis  etc.  R.  R.  Co.  v.  Berry, 
113  U.  S.  465  (1885) ;  Keokuk  etc,  R.  R.  Co.  v.  Missouri,  152  U.  S.  301  (1894) ; 
Minneapolis  etc.  R.  R.  Co.  v.  Gardner,  177  U.  S.  332  (1900) ;  Yazoo  etc.  R.  R. 
Co.  v.  Adams,  180  U.  S.  1  (1901). 

15  This  principle  is  applicable  without  question  when  the  reservation  of  the 
right  to  alter,  amend  or  repeal  is  contained  in  the  state  constitution,  Union 
Passenger  R.  R.  Co.  v.  Philadelphia,  101  U.  S.  528  (1879);  Chesapeake  eta. 
R.  R.  Co.  v.  Miller,  114  U.  S.  176  (1884);  Covington  v.  Kentucky,  173  U.  S. 
231  (1896) ;  or  in  the  charter  of  the  corporation  to  which  the  exemption  was 
granted,  New  York  v.  Cook,  148  U.  S.  397  (1893);  Louisville  v.  Louisville 
Bank,  174  U.  S.  439  (1899);  or  in  the  general  laws  in  force  when  the  charter 
was  granted,  if  no  intent  to  the  contrary  appears,  Tomlinson  v.  Jessup,  15  Wall. 
454  (1872) ;  Maine  Central  R.  R.  Co.  v.  Maine,  96  U.  S.  499  (1877) ;  Atlantic 
etc.  R.  R.  Co.  v.  Georgia,  98  U.  S.  359  (1878) ;  Hoge  v.  Richmond  etc.  R.  R< 
Co.,  99  U.  S.  348  (1878);  Sioux  City  St.  Ry  Co.  v.  Sioux  City,  138  U.  S.  98 
(1891);  Louisville  Water  Co.  v.  Clark,  143  U.  S.  1  (1892);  Louisville  v.  Louis- 
ville Bank,  174  U.  S.  439  (1899) ;  even  if  the  exemption  was  granted  for  a 
specific  period,  Citizens  Savings  Bank  v.  Owensboro,  173  U.  S.  636  (1899). 
A  ,  reserved  right  to  alter,  amend  and  repeal,  when  contained  in  a  general 
statute  may  be  waived  by  the  legislature,  and  an  exemption  will  constitute 
a  binding  contract  if  it  clearly  app^rs  that  such  was  the  intent  of  the  legis- 
lature, even  if  such  a  statute  was  in  force,  Home  for  Friendless  v.  Rouse,  8  Wall. 
430  (1869) ;  New  Jersey  v.  Yard.  95  U.  S.  104  (1877). 

16  St.  1830,  c.  81.  This  provision  is  now  contained  in  the  Fifty-ninth 
Amendment  to  the  Constitution  of  Massachusetts,  adopted  in  1918. 

17  Memphis  etc.  R.  R.  Co.  v.  Gaines,  97  U.  S.  697  (1878) ;  Louisville  etc. 
R.  R.  Co.  v.  Palmes,  109  U.  S.  244  (1883) ;  Yazoo  etc.  R.  R.  Cd.  v.  Adams,  180 
U.  S.  1  (1900)  ;  Gulf  etc.  R.  R.  Co.  v.  Hewes,  183  U.  S.  66  (1901) ;  Berryman  v. 
Whitman  College,  222  U.  S.  334  (1912).  A  constitutional  provision  prohibiting 
the  granting  of  exemptions  does  not  affect  the  validity  of  an  exemption  granted 
before  the  provision  was  adopted,  Dodge  v.  Woolsey,  18  How.  331  (1885) ;  Home 
of  the  Friendless  v.  Rouse,  8  Wall.  430  (1869).  It  does  however  prevent  the 
transfer  of  an  exemption   from   one   corporation   to   another,   even   with   the 


30  Taxation    in   Massachusetts  [part  i 

In  the  seventh  place,  it  must  be  remembered  that  the  con- 
tract clause  of  the  constitution  does  not  prohibit  a  state  from 
impairing  the  obligation  of  contracts  but  merely  from  passing 
any  law  impairing  the  obligation  of  contracts;  and  unless  the 
alleged  exemption  is  adversely  affected  by  subsequent  legislation 
as  distinguished  from  judicial  decision,  the  contract  clause  can- 
not be  invoked.18 


17.  Discrimination  Against  Citizens  of  Other  States 

The  constitution  of  the  United  States  provides  in  Article  4 
Section  2  that  the  citizens  of  each  state  shall  be  entitled  to  all 
the  privileges  and  immunities  of  citizens  in  the  several 
states.  This  provision  makes  it  impossible  for  a  state  to  tax 
residents  of  other  states  who  own  property  or  carry  on  business 
within  its  limits  at  a  higher  rate  than  its  own  citizens  are  taxed 
under  like  circumstances.1  The  prohibition  of  this  provision 
is  not  limited  to  discriminatory  laws,  and  if  it  appears  that  there 
is  an  habitual  practice,  based  upon  a  settled  purpose,  on  the  part 
of  local  assessors  to  discriminate  against  non-residents  in  the 
valuation  of  property,  the  proceedings  are  void.2 

Exact  identity  in  the  taxation  of  residents  and  non-residents 
is  not  however  required,  if  substantial  equality  is  preserved,  and 
differences  in  administrative  procedure  required  to  meet 
practical  distinctions  in  the  taxation  of  residents  and  non-resi- 


sanction  of  the  legislature,  Trask  v.  Maguire,  18  Wall.  391  (1878) ;  Keokuk  etc. 
R.  R.  Co.  v.  Missouri,  152  U.  S.  301  (1893) ;  Gulf  etc.  R.  R.  Co.  v.  Hewes,  183 
U.  S.  66  (1901);  or  the  revival  of  an  exemption  which  has  lapsed,  Chicago  etc. 
R.  R.  Co.  v.  Minnesota,  216  U.  S.  234  (1910) ;  or  the  extension  of  an  exemption 
granted  originally  for  a  limited  term,  Memphis  etc.  R.  R  Co.  v.  Gaines,  97  U.  S. 
697  (1878);  or  a  radical  change  in  the  purposes  for  which  an  exempted  corpora- 
tion was  chartered,  Memphis  City  Bank  v.  Tennessee,  161  U.  S.  186  (1896). 
"  St.  Paul  etc.  R.  R.  Co.  v.  Todd  Cdunty,  142  U.  S.  282  (1892). 

1  Thus  a  state  statute  prohibiting  non-residents  of  the  state  from  selling 
goods  within  the  state  except  upon  payment  of  a  license  fee  higher  than  that 
imposed  upon  resident  merchants  is  in  violation  of  this  provision,  Ward  v. 
Maryland,  12  Wall.  424  (1870). 

An  excise  on  dividends  paid  to  non-resident  shareholders  in  domestic 
corporations  is  unconstitutional,  Oliver  v.  Washington  Mills,  11  Allen  281  (1865). 
A  state  statute  taxing  the  business  of  hiring  persons  to  labor  outside  the 
state  does  not  violate  this  provision  of  the  constitution,  as  there  is  no  dis- 
crimination against  citizens  of  other  states,  Williams  v.  Fears,  179  U.  S.  274 
(1900). 

2  Beeson  v.  Johns,  124  U.  S.  56  (1888). 


sect.  18]    Express  Limitations  of  Federal  Constitution  31 

dents  are  unobjectionable,  even  if  as  a  result  the  non-resident 
is  dealt  with  more  severely.3 

A  corporation  is  not  a  citizen  of  any  state  within  the  meaning 
of  the  clause  of  the  constitution  now  under  discussion,  and  con- 
sequently a  corporation  has  no  constitutional  right  as  such  to 
transact  business  in  any  state  other  than  that  from  which  it 
received  its  charter.4  A  state  can  accordingly  impose  whatever 
tax  it  sees  fit  upon  a  foreign  corporation  seeking  to  do  a  purely 
local  business  within  its  limits  provided  that  it  does  not  require 
the  corporation  to  surrender  any  of  its  rights  under  the  consti- 
tution of  the  United  States,  and  if  the  corporation  wishes  to 
avail  itself  of  the  privilege  it  must  take  it  subject  to  the  accom- 
panying burden,  even  if  the  tax  is  much  more  onerous  than  is 
imposed  upon  domestic  corporations  under  like  conditions.5 

18.   Obligation  to  Give  Full  Faith  and  Credit  to  Acts 

of  Every  Other  State 

The  constitution  of  the  United  States  provides  that  full  faith 
and  credit  shall  be  given  in  each  state  to  the  acts  of  every  other 
state.  This  provision  has  little  if  any  effect  upon  the  taxing 
powers  of  the  states,  because  no  state  can,  by  its  public  acts, 
detract  from  the  taxing  power  of  another  state  over  property 
within  its  jurisdiction.  Thus  one  state,  by  declaring  bonds  is- 
sued by  its  own  municipalities  to  be  exempt  from  taxation,  can- 
not prevent  such  bonds  from  being  taxed  by  another  state  when 
owned  by  inhabitants  of  such  other  state;1  and  similarly  a  state 
by  declaring  the  taxing  situs  of  stock  in  corporations  established 
under  its  laws  to  be  in  the  state  of  their  origin  cannot  prevent 
the  taxation  of  such  stock  when  held  by  inhabitants  of  other 
states.2 

No,  state  is  bound  by  interstate  comity  to  enforce  the  revenue 

3  Thus  a  provision  by  which  the  non-resident  pays  his  tax  to  the  state  and 
the  resident  to  the  municipality  in  which  he  lives  is  unobjectionable,  although 
in  a  given  year  there  may  be  some  slight  inequality  in  the  actual  result, 
Travellers'  Insurance  Co.  v.  Connecticut,  185  U.  S.  371  (1902).  A  statute  allow- 
ing constructive  notice  by  publication  of  the  sale  of  land  for  non-payment  of 
taxes  in  the  case  of  non-residents,  but  requiring  personal  service  of  notice 
upon  resident  owners  is  unobjectionable  since  personal  service  upon  non-resi- 
dents is  not  ordinarily  practicable,  Ballard  v.  Hunter,  204  U.  S.  241  (1907). 

*  Paul  v.  Virginia,  8  Wall.  181   (1868). 

5  Infra,  §  23. 

1  Bonaparte  v.  Tax  Court,  104  U.  S.  592  (1881). 

2  Bellows  Falls  Power  Co.  v.  Commonwealth,  222  Mass.  51  (1915) ;  affirmed, 
245  U.  S.  630  (1917). 


32  Taxation   in   Massachusetts  [part  i 

laws  of  other  states;  and  consequently  an  action  cannot  be 
maintained  in  one  state  against  persons  or  property  within  its 
jurisdiction  to  recover  a  tax  levied  by  authority  of  another 
state.3 


19.  Limitations  of  the  Taxing  Powers  of  the  State  by 

Treaties 

The  power  which  a  state  would  otherwise  have  of  discrimi- 
nating against  aliens  in  its  tax  laws  may  be  limited  by  treaties 
made  by  the  United  States  with  foreign  governments,  since  it 
is  provided  by  Article  VI  of  the  constitution  of  the  United 
States  that  treaties  made  under  the  authority  of  the  United 
States  shall  be  the  supreme  law  of  the  land.  Thus  in  the  absence 
of  a  treaty  to  the  contrary  a  state  may  deny  to  aliens  the  right 
to  inherit  property  within  its  jurisdiction,  and  consequently  may 
impose  a  tax  upon  inheritance  by  aliens  at  a  higher  rate  than  is 
imposed  upon  citizens  of  the  United  States.1  Such  a  discrimina- 
tion may  be  prohibited  by  treaty,  although  a  treaty  would  not 
affect  a  tax  upon  the  estate  of  a  decedent  who  had  died  before 
the  treaty  took  effect.2  A  treaty  providing  that  no  higher  taxes 
shall  be  laid  upon  the  property  of  citizens  of  one  of  the  contract- 
ing parties  than  upon  a  citizen  of  the  nation  imposing  the  tax 
does  not  apply  to  a  discriminatory  inheritance  tax,  since  such  a 
tax  is  not  a  tax  on  property;3  and  a  treaty  providing  that  citizens 
of  either  of  the  contracting  parties  may  freely  dispose  of  their 
goods  by  will  does  notprohibit  a  state  inheritance  tax  law  from  dis- 
criminating against  alien  beneficiaries;4  or  against  beneficiaries 
who  are  not  residents  of  the  United  States,5  because  such  a  treaty 
grants  a  right  to  dispose  of  and  not  to  receive  property  by  will. 

3  Wisconsin  v.  Pelican  Insurance  Co.,  127  U.  S.  265,  290   (1888). 

1  Mager  v.  Grima,  8  How.  490  (1849).  In  the  absence  of  a  treaty  the 
capacity  of  an  alien  to  inherit  depends  upon  the  laws  of  the  state.  Sullivan 
v.  Kidd,  254  U.  S.  533  (1921). 

2  Prevost  v.  Greeneaux,  19  How.  1   (1856). 

3  Peterson  v.  Iowa,  245  U.  S.  170  (1917). 
*  Duus  v.  Brown,  245  U.  S.  176  (1917). 

5  Frederickson  v.   Louisiana,   23   How.  445    (1859). 


sect.  20]  Interstate   Commerce  33 


INTERSTATE   COMMERCE 

20.  The  Taxation  of  Interstate  Commerce,  and  of 
Property  Engaged  Therein 

The  constitution  of  the  United  States  contains  in  Article  1, 
Section  8  the  following  provision: 

The  Congress  shall  have  power  ....  to  regulate  commerce  with 
foreign  nations,  and  among  the  several  States,  and  with  the  Indian 
tribes. 

It  is  to  be  noted  that  this  provision  of  the  constitution  does 
not  in  terms  prohibit  the  states  from  regulating  interstate  com- 
merce and  it  has  not  been  interpreted  as  in  itself  excluding  them 
from  all  control  over  such  commerce.  It  is  only  with  regard  to 
matters  upon  which  Congress  has  acted  or  which  in  their  nature 
require  uniform  treatment  that  the  states  are  precluded  from 
acting.  Applied  to  the  state  power  of  taxation  the  interstate 
commerce  clause  does  not  prohibit  a  state  from  taxing  property 
engaged  in  interstate  commerce,  or  even  from  imposing  the  ordi- 
nary property  tax  upon  the  franchise  of  a  corporation  engaged 
in  interstate  commerce.  It  does  however  prohibit  a  state  from 
taxing  in  any  manner  the  privilege  of  engaging  in  interstate  com- 
merce within  its  limits,  or  from  imposing  a  tax  upon  property  en- 
gaged in  interstate  commerce  at  a  higher  rate  than  is  imposed 
upon  other  property.  The  application  of  these  principles  is  set 
forth  in  detail  in  the  following  sections. 

Not  all  dealings  which  affect  persons  or  property  outside  the 
state  in  which  the  dealings  originate  constitute  interstate  com- 
merce; and  a  state  may  tax  interstate  transactions  which  do  not 
constitute  commerce  without  violating  the  clause  of  the  consti- 
tution now  under  consideration.1    So  also  not  all  pecuniary  im- 

1  A  license  may  be  required  of  insurance  agents  acting  for  foreign  corpora- 
tions, Nutting  v.  Massachusetts.  183  U.  S.  553  (1902),  or  of  emigration  agents 
seeking  to  employ  persons  in  labor  outside  the  state.  Williams  v.  Fears,  179 
U.  S.  276  (1900).  A  tax  on  money  and  exchange  brokers  is  valid  though 
applied  to  one  whose  sole  business  is  in  foreign  bills  of  exchange.  Nathan  v. 
Louisiana,  8  How.  80  (1850).  A  tax  on  the  transfer  within  a  state  of  shares 
in  corporations  may  be  applied  to  shares  in  foreign  corporations  owned  by 
non-residents,  Hatch  v.  Reardon,  204  U.  S.  152  (1907),  and  a  tax  may  be  im- 
posed on  a  local  cab  service  connected  with  an  interstate  railway.  New  York 
v.  Knight,  192  U.  S.  21  (1904).    A  license  tax  on  the  occupation  of  a  railroad 


34  Taxation    in    Massachusetts  [part  i 

positions  upon  the  act  of  engaging  in  interstate  commerce  are 
taxes,2  and  a  reasonable  fee  for  the  use  of  public  property  or  for 
the  services  of  public  officers  may  be  collected  from  persons  or 
corporations  engaged  in  interstate  commerce  as  well  as  from 
other  parties.3  For  this  reason  wharfage  fees,4  canal  tolls,5  or 
charges  for  the  use  of  log  booms 6  may  be  imposed  without  any  ex- 
emption in  favor  of  the  persons  engaged  in  interstate  commerce ; 
and  for  the  same  reason  a  license  fee  may  be  charged  by  a  state 
for  the  use  of  its  roads  by  motor  vehicles  even  while  engaged  in 
interstate  commerce.7  Similarly  a  municipal  corporation  may  be 
authorized  to  impose  a  charge  upon  an  interstate  telegraph 
company  for  the  right  to  maintain  poles  in  the  public 
streets,  since  such  a  charge  is  more  a  rental  than  a  tax,8 
and  fees  covering  the  cost  of  an  inspection  required  to  pro- 
tect the  public  health,  morals  or  safety  are  equally  unobjection- 
able though  applied  to  persons  engaged  in  interstate  commerce.9 
But  even  charges  and  fees  which  are  not  taxes  cannot  be  imposed 
in  such  a  manner  as  to  discriminate  against  interstate  commerce,10 
and  an  imposition  which  is  really  a  tax  cannot  be  sustained  by 
calling  it  a  toll  or  a  charge.11 


agent,  or  on  the  maintenance  of  a  railroad  office  cannot  however  be  applied 
to  an  interstate  railway.  McCall  v.  California,  136  U.  S.  109  (1890);  Norfolk 
R.  R.  Co.  v.  Pennsylvania,  136  U.  S.  118  (1890). 

2  Supra  §  §  4,  5.  6. 

3  Northwestern  Union  Packet  Co.  v.  St,  Louis,  100  U.  S.  ^423  (1879) ; 
Cincinnati  etc.  Packet  Co.  v.  Catlettsburg,  105  U.  S.  559  (1881);  Onachita 
Packet  Co.  v.  Aiken,  121  U.  S.  444  (1887);  Postal  Tel.  Cable  Co.  v.  Baltimore, 
156  U.  S.  210  (1895);  Richmond  v.  Southern  etc.  Tel.  Co.,  174  U.  S.  761  (1899). 
See  also  the  cases  cited  in  notes  4  to  9  inc. 

4  Parkersburg  etc.  Transportation  Co.  v.  Parkersburg,  107  U.  S.  691  (1882). 

5  Huse  v.  Glover,  119  U.  S.  543  (1886). 

6  Lindsay  etc.  Co.  v.  Mullen,  176  U.  S.  126  (1900). 

7  Hendrick  v.  Maryland,  235  U.  S.  610  (1915);  Kane  v.  New  Jersey,  242 
U.  S.  160  (1916). 

s  St.  Louis  v.  Western  Union  Tel.  Co.,  148  U.  S.  92  (1893),  149  U.  S.  465 
(1893);  Atlantic  etc.  Tel.  Co.  v.  Philadelphia,  190  U.  S.  160  (1903). 

9  Thus  a  license  fee  may  be  imposed  to  cover  the  cost  of  the  inspection 
of  interstate  telegraph  poles,  Western  Union  Tel.  Co.  v.  New  Hope,  187  U.  S. 
419  (1903);  Atlantic  etc.  Tel.  Co.  v.  Philadelphia,  190  U.  S.  160  (1903);  Postal 
Tel.  Cable  Co.  v.  Taylor,  192  U.  S.  64  (1904);  Mackay  Tel.  etc.  Co.  v.  Little 
Rock,  250  U.  S.  94  (1919).  See  also  Postal  Tel.  Cable  Co.  v.  Chicopee,  207 
Mass.  341  (1911),  holding  that  a  telegraph  company  may  be  required  to  carry 
municipal  lighting  wires  on  its  poles  without  compensation,  as  a  set-off  to  the 
cost  of  inspection  which  its  poles  necessitate. 

i°  Guy  v.  Baltimore,  100  U.  S.  434  (1879);  Brimmer  v.  Rebman,  138  U.  S. 
78  (1891). 

»  State  Freight  Tax  Case,  15  Wall.  232  (1872). 


sect.  21]  Interstate   Commerce  35 


21.   Taxation  of  the  Privilege  of  Engaging  in  Interstate 

Commerce 

No  state  can  constitutionally  prohibit  the  carrying  on  of 
foreign  or  interstate  commerce  within  its  limits x  or  impose  an 
excise  upon  the  privilege  of  engaging  in  such  commerce.2  Thus 
a  state  cannot  impose  a  license  tax  on  the  occupation  of  import- 
ing foreign  goods,3  or  of  selling  goods  brought  in  from  another 
state.4  There  is  no  doubt  that  a  state  may  tax  the  occupation 
of  a  peddler,  that  is  a  person  travelling  from  place  to  place  selling 
goods  which  he  carries  with  him,  although  the  goods  are  manu- 
factured in  another  state  and  the  peddler  is  really  the  agent  of 
a  dealer  located  in  another  state,5  but  a  travelling  salesman  who 
takes  orders  in  one  state  for  goods  to  be  shipped  from  another 
is  so  closely  identified  with  interstate  commerce  that  his  occu- 
pation cannot  be  taxed  by  the  state.6    A  privilege  tax  on  all 

1  Pembina  eto.  Mining  Co.  v.  Pennsylvania,  125  U.  S.  186  (1888);  Horn 
Silver  Mining  Co.  v.  New  York,  143  U.  S.  314  (1892) ;  Hooper  v.  California,  155 
U.  S.  653  (1895). 

2  Thus  a  state  cannot  require  a  license  for  vessels  engaging  in  the  coasting 
trade  betwen  ports  in  different  states,  Sinnot  v.  Davenport,  22  How.  239 
(1859) ;  or  of  an  interstate  ferry  line,  Gloucester  Ferry  Co.  v.  Pennsylvania, 
114  U.  S.  196  (1885);  St.  Clair  County  v.  Interstate  etc.  Transfer  Co.,  192  U.  S. 
454  (1904);  or  for  towing  vessels  engaged  in  interstate  commerce,  Moran  v. 
New  Orleans,  112  U.  S.  69  (1884);  or  for  carrying  on  an  interstate  express 
business,  Osborne  v.  Mobile,  16  Wall.  33  (1871) ;  Crutcher  v.  Kentucky,  141  U.  S. 
47  (1891) ;  or  for  running  sleeping  cars  through  a  state,  Pickard  v.  Pullman 
Southern  Car  Co.,  117  U.  S.  46  (1886);  or  for  maintaining  an  interstate  tele- 
graph line,  Leloup  v.  Mobile,  127  U.  S.  645  (1888). 

3  Brown  v.  Maryland,  12  Wheat.  419  (1827). 

4  Low  v.  Austin,  13  Wall.  33  (1871).  A  tax  on  dealers  in  a  certain  com- 
modity is  unconstitutional  as  to  dealers  who  sell  the  commodity  only  in  original 
packages  brought  in  from  another  state;  and  the  same  is  true  of  a  tax  on 
sales  of  such  a  commodity,  Standard  Oil  Co  v.  Graves,  249  U.  S.  389  (1919); 
but  as  to  sales  not  in  the  original  package  the  tax  is  valid.  Whether  an  act 
imposing  a  tax  of  this  kind  which  covers  all  dealers  and  all  sales  is  unconstitu- 
tional depends  upon  the  question  whether  the  act  is  separable  and  is  capable 
of  being  sustained  as  a  tax  upon  business  legitimately  taxable.  Askren  v. 
Continental  Oil  Co.,  252  U.  S.  444  (1920).  With  respect  to  a  tax  on  the  sale 
or  use  of  a  commodity  the  tax  is  separable  and  may  be  enforced  with  respect  to 
the  sale  or  use  of  the  commodity  so  far  as  such  sale  or  use  is  not  in  the  original 
package;  but  a  license  tax  on  dealers  which  makes  no  exception  in  favor  of 
interstate  commerce  is  not  separable  and  is  wholly  void.  Bowman  v.  Con- 
tinental Oil  Co.,  U.  S.  (1921). 

5  Howe  Machine  Co.  v.  Cage,  100  U.  S.  676  (1879) ;  Emert  v.  Missouri,  156 
U.  S.  311  (1895);  Wagner  v.  Covington.  251  U.  S.  95  (1919). 

6  Robbins  v.  Shelby  County  Taxing  District,  120  U.  S.  493  (1887) ;  Brennan 
v.  Titusville',  153  U.  S.  297  (1894);  Caldwell  v.  North  Carolina,  187  U.  S. 
622  (1902);  Norfolk  etc.  R.  R.  Co.  v.  Sims,  191  U.  S.  451  (1903).  A  tax  on 
travelling  salesmen  is  bad.   although  the   goods  are  shipped  to   the   salesman 


36  Taxation   in   Massachusetts  [part  i 

dealers  may  however  be  collected  from  one  whose  principal  busi- 
ness is  in  soliciting  orders  for  manufacturers  outside  the  state.7 

With  respect  to  maintaining  branch  stores  or  agencies  in 
another  state,  if  a  manufacturer  merely  places  his  goods  in  the 
hands  of  retail  dealers  in  another  state,8  or  sends  goods  on  con- 
signment to  purchasers  in  another  state,9  or  even  maintains  a 
local  office  in  another  state  as  a  headquarters  for  his  salesmen 
and  for  the  storage  and  display  of  samples,10  he  cannot  be  sub- 
jected to  an  excise  or  license  tax  by  such  other  state.  It  is  only 
when  he  maintains  a  store  for  local  business  that  he  can  be  sub- 
jected to  such  a  tax.11 

A  tax  on  passengers  coming  from  foreign  ports  or  from  the 
ports  of  other  states  is  unconstitutional  under  whatever  guise;12 
but  a  reasonable  quarantine  fee  covering  only  the  cost  of  inspec- 
tion is  not  objectionable  as  a  tax  on  passengers.13 

22.   Taxation  of  Domestic  Corporations  Engaged  in 
Interstate  Commerce 

The  plenary  power  of  a  state  over  corporations  of  its  own 
creation  is  still  universally  recognized,  and  the  state,  which  may 
grant  or  withhold  a  franchise  as  it  may  elect,  may  impose  as  a 
condition  upon  the  grant  the  payment  of  such  a  tax  as  the  leg- 
islature sees  fit  to  impose.  It  is  well  settled  that  a%tax  may  be 
levied  upon  the  franchise  of  a  corporation  measured  by  the  value 
of  its  capital  stock,  even  if  part  of  the  capital  of  the  corporation 
is  invested  in  property  which  the  state  has  no  power  to  tax,1 


in  bulk  and  assorted  by  him  for  the  respective  purchasers,  Kehrer 
v.  Stewart,  197  U.  S.  60  (1905);  Rearick  v.  Pennsylvania.  203  U.  S.  507  (1906). 
The  fact  that  the  salesman  is  a  resident  of  the  state  imposing  the  tax  does 
not  make  it  valid,  if  he  is  acting  for  a  non-resident  principal.  Stockard  v. 
Morgan,  185  U.  S.  37  (1902). 

7  Ficklen  v.  Shelby  County  Taxing  District,  145  U.  S.  21  (1892). 

s  Lyng  v.  Michigan,  135  U.  S.  161   (1870). 

»  Norfolk  etc.  R.  R.  Co.  v.  Sims,  191  U.  S.  441  (1903) ;  Dozier  v.  'Alabama, 
218  U.  S.  124  (1910). 

10  Cheney  Bros.  Co.  v.  Massachusetts,  246  U.  S.  147  (1918);  Marconi 
Wireless  Tel.  Co.  v.  Commonwealth,  218  Mass.  558  (1914). 

11  Injra  §  24. 

12  Smith  v  Turner,  7  How.  412  (1849) ;  Henderson  v.  Mayor  of  New  York, 
92  U.  S.  259  (1875) ;  People  v.  Compagnie  Generate  Transatlantique,  107  U.  S. 
60  (1882). 

13  Morgan's  Steamship  Co.  v.  Louisiana  Board  of  Health,  118  U.  S.  465 
(1886).    See  also  Norris  v.  Boston,  4  Met.  282  (1842). 

1  Society  for  Savings  v.  Coite,  6  Wall.  594  (1867);  Home  Insurance  Co. 
v.  New  York,  134  U.  S.  594  (1890);  Flint  v.  Stone  Tracy  Co.,  220  U.  S.  107 
(1911);  Kansas  City  etc.  R.  R.  Co.  v.  Botkin,  240  U.  S.  227  (1916). 


sect.  22 J  Interstate   Commerce  37 

and  it  necessarily  follows  that  a  state  may  levy  an  excise  on  the 
franchise  of  corporations  established  under  its  laws  graded  in 
proportion  to  the  value  of  the  capital  stock,  which  may  constitu- 
tionally be  applied  to  corporations  engaged  in  interstate  com- 
merce.2 The  tax  in  such  a  case  is  not  a  tax  on  the  privilege  of 
engaging  in  interstate  commerce  but  on  the  privilege  of  existing 
as  a  corporation,  which  is  derived  from  the  state  and  not  from 
the  constitution  of  the  United  States.  For  similar  reasons  a 
state  may  levy  a  franchise  tax  based  on  the  entire  capital  stock 
of  a  consolidated  corporation  which  so  far  as  it  does  business 
within  the  limits  of  such  state  is  incorporated  under  its  laws.3 

A  state  may  not  constitutionally  tax  the  gross  receipts  of  a 
domestic  corporation  derived  from  interstate  commerce 4  and 
what  it  cannot  do  directly  it  cannot  do  indirectly  by  im- 
posing a  tax  on  the  franchise  of  a  domestic  corporation 
engaged  in  interstate  commerce  equal  to  a  fixed  proportion 
of  its  gross  receipts,  in  addition  to  the  taxes  on  its  prop- 
erty;5 but  since  the  corporation  can  be  taxed  as  a  going  con- 
cern and  the  extent  of  business  done  indicates  the  value 
of  its  property,  the  gross  receipts  may  be  used  as  the  measure 
of  the  tax  on  its  property  and  franchise  when  such  a  tax  is  not 
additional  to  a  tax  on  its  property  valued  in  some  other  way.6 

A  state  has  no  power  to  tax  such  property  of  a  domestic  cor- 
poration as  is  permanently  located  in  another  state;7  and  when 
the  capital  stock  of  a  domestic  corporation  is  taxed,  the  value 
of  the  tangible  property  of  the  corporation  permanently  located 
outside  the  state  must  be  deducted.8    Since  however  in  imposing 

2  Delaware  Railroad  Tax,  18  Wall.  206  (1873) ;  Wiggins  Ferry  Co.  v.  East 
St.  Louis,  107  U.  S.  365  (1882);  Henderson  Bridge  Co.  v.  Kentucky,  166  U.  S. 
150  (1897);  Kansas  City  etc.  R.  R.  Co.  v.  Botkin,  240  U.  S.  227   (1916). 

s  Ashley  v.  Ryan,  153  U.  S.  436  (1894);  Keokuk  etc.  Bridge  Co.  v.  Illinois, 
175  U.  S.  626  (1900). 

4  Philadelphia  etc.  Steamship  Co.  v.  Pennsylvania,  122  U.  S.  326  (1887); 
Crew  Levick  Co.  v.  Pennsylvania,  245  U.  S.  292  (1917). 

5  Galveston  etc.  R.  R.  Co.  v.  Texas,  210  U.  S.  217  (1908). 

6  Maine  v.  Grand  Trunk  R.  R.  Co.  142  U.  S.  217  .(1891);  United  States 
Express  Co.  v.  Minnesota,  223  U.  S.  335  (1912);  Cudahy  Packing  Co.  v. 
Minnesota,  246  U.  S.  450  (1918). 

»  Union  Refrigerator  Transit  Co.  v.  Kentucky,  199  U.  S.  194   (1905). 

s  Delaware  etc.  R.  R.  Co.  v.  Pennsylvania,  198  U.  S.  341  (1905).  Since  how- 
ever intangible  personal  property  has  its  situs  at  the  domicile  of  the  owner,  a 
state  may  tax  a  domestic  corporation  on  the  aggregate  value  of  its  capital 
stock  in  excess  of  its  debts,  real  estate  and  tangible  personal  property  although 
it  owns  no  property  and  does  no  business  in  such  state.  Cream  of  Wheat  Co. 
v.  Grand  Forks,  253  U.  S.  325  (1920). 


38  Taxation    in   Massachusetts  [part  i 

an  excise  on  the  franchise  of  a  domestic  corporation  property 
which  the  state  has  no  power  to  tax  directly  may  be  considered,9 
it  would  seem  that  a  domestic  corporation  has  no  constitutional 
right  to  have  the  value  of  property  permanently  located  outside 
the  state  deducted  when  an  excise  on  its  franchise  based  on  the 
aggregate  value  of  its  capital  stock  is  assessed.1 


10 


23.  Excise  Taxes  upon  Foreign  Corporations 

The  limitations  imposed  by  the  federal  constitution  upon 
the  power  of  a  state  to  levy  excise  taxes  upon  corporations  or- 
ganized under  the  laws  of  other  states  for  the  privilege  of  doing 
business  within  the  limits  of  the  state  imposing  the  tax  are  not 
easy  to  define  accurately,  because,  as  the  supreme  court  of  the 
United  States  has  itself  said,  there  has  been  at  times  some  di- 
versity of  opinion  among  the  members  of  the  court  upon  this 
subject  and  some  of  the  decisions  have  not  been  in  full  accord 
with  others.1  The  general  principles  which  govern  have  however 
become  well  established;  the  difficulty  is  in  applying  them  to 
particular  facts. 

A  state  cannot  prohibit  an  individual  citizen  of  another  state 
from  doing  business  within  its  limits,  or  impose  a  tax  upon  him 
for  the  privilege  of  doing  such  business  more  onerous  than  is 
imposed  upon  residents  of  the  state,  even  if  his  business  is  carried 
on  wholly  within  the  limits  of  the  state  imposing  the  tax.  The 
lack  of  power  of  the  state  in  this  particular  arises  from  the  clause 
in  Article  IV,  Section  2  of  the  constitution  of  the  United  States, 
which  provides  that  the  citizens  of  each  state  shall  be  entitled 
to  all  privileges  and  immunities  of  citizens  in  the  several  states.2 
Further,  a  state  cannot  prohibit  any  person,  or  any  corporation 
which  it  has  not  itself  established,  from  carrying  on  interstate 
commerce  within  its  limits,  or  impose  a  tax  for  the  privilege  of 
carrying  on  such  commerce.3    The  lack  of  power  of  the  state  in 

9  See  infra  §  27.     . 

10  See  Commonwealth  v.  New  England  Slate  &  Tile  Co.,  13  Allen  391 
(1866). 

1  Van  Devanter  J.  in  International  Paper  Co.  v.  Massachusetts,  246  U.  S. 
135,  141   (1918). 

2  Supra  §  17.  See  also  Corfield  v.  Coryell,  4  Wash.  371  (1823) ;  Slaughter 
House  Cases,  16  Wall.  97  (1872). 

■  Gloucester  Ferry  Co.  v.  Pennsylvania.  114  U.  S.  196  (1885);  Pickard  v. 
Pullman  Southern  Car  Co.,  117  TJ.  S.  34  (1886) ;  Pembina  etc.  Mining  Co.  v. 
Pennsylvania,  125  U.  S.  181  (1888) ;  Leloup  v.  Mobile,  127  U.  S.  640  (1888) ;  Nor- 


sect.  23]  Interstate   Commerce  39 

this  particular  arises  from  the  clause  in  Article  I,  Section  8  of 
the  constitution  of  the  United  States  which  provides  that  Con- 
gress shall  have  power  to  regulate  commerce  among  the  several 
states  and  which  indirectly  prohibits  the  several  states  from  in- 
terfering with  such  commerce.  But  the  provisions  of  Article  IV, 
Section  2  which  prohibit  discrimination  against  citizens  of 
other  states  do  not  apply  to  corporations;  and  a  state 
may  wholly  exclude  a  corporation  organized  under  the  laws 
of  another  state  from  carrying  on  •  business  within  its  limits, 
unless  its  business  constitutes  interstate  commerce  or  in  some 
other  way  is  beyond   the  control  of  the  state;    and  having 


folk  etc.  R.  R.  Co.  v.  Pennsylvania,  136  U.  S.  114  (1890) ;  Horn  Silver  Mining  Co. 
v.  New  York,  143  U.  S.  305  (1892) ;  Postal  Tel.  Cable  Co.  v.  Charleston,  153  U.  S. 
692  (1894);  Hooper  v.  California,  155  U.  S.  648  (1895) ;  Western  Union  Tel.  Co. 
v.  Kansas,  216  U.  S.  1  (1900);  International  Text-Book  Co.  v.  Pigg,  217  U.  S. 
91  (1910);  Sault  Ste.  Marie  v.  International  Trancit  Co.  234  U.  S.  333  (1914); 
Looney  v.  Crane  Co.,  245  U.  S.  178  (1917);  Cheney  Bros.  Co.  v.  Massachusetts, 
246  U.  S.  147  (1918).  A  statute  imposing  in  general  terms  an  excise  tax  on 
corporations  doing  business  within  a  state  will  ordinarily  be  construed  by  the 
state  courts  as  not  applicable  to  corporations  doing  only  an  interstate  business, 
and  so  construed  is  constitutional.  Kehrer  v.  Stewart,  197  U.  S.  60  (1905); 
Armour  Packing  Co.  v.  Lacy,  200  U.  S.  226  (1906) ;  Attorney  General  v.  Electric 
Storage  Battery  Co.,  188  Mass.  239  (1905);  Marconi  Wireless  Tel.  Co.  v.  Com- 
monwealth, 218  Mass.  558  (1914).  What  constitutes  a  local  business  carried  on 
by  a  foreign  corporation  within  a  state  as  distinguished  from  an  interstate 
business  is  not  always  easy  to  define.  A  foreign  manufacturing  corporation 
clearly  is  not  doing  a  local  business  in  a  state  merely  because  it  places  its 
goods  in  the  hands  of  retail  dealers  therein,  Lyng  v.  Michigan,  135  U.  S.  161 
(1890).  So  also  sending  agents  or  commercial  travellers  into  a  state  to 
take  orders  for  goods  which  are  shipped  from  another  state  is  clearly  not 
engaging  in  a  local  business,  Robbins  v.  Shelby  County  Taxing  District,  120 
U.  S.  493  (1887) ;  Brennan  v.  Titusville,  153  U.  S.  297  (1894) ;  Caldwell  v.  North 
Carolina,  187  U.  S.  622  (1902);  Norfolk  etc.  R.  R.  Co.  v.  Sims,  191  U.  S.  451 
(1903);  Dozier  v.  Alabama,  218  U.  S.  124  (1910);  Crenshaw  v.  Arkansas,  227 
U.  S.  389  (1913) ;  and  it  can  make  no  difference  that  the  agent  is  a  resident 
of  the  state  in  which  he  does  business,  Stockard  v.  Morgan,  185  U.  S.  37  (1902); 
or  that  the  goods  are  shipped  to  the  agent  in  bulk  and  are  assorted  by  him  for  the 
respective  purchasers,  Kehrer  v.  Stewart,  197  U.  S.  60  (1905) ;  or  that  the  corpora- 
tion maintains  an  office  as  a  local  headquarters  for  its  salesmen,  Marconi  Wireless 
Tel.  Co.  v.  Commonwealth,  218  Mass.  558  (1914) ;  even  if  the  office  is  also  used 
for  the  storage  and  display  of  samples  of  its  products,  Cheney  Bros.  Co.  v. 
Massachusetts,  246  U.  S.  147  (1918).  But  when  a  foreign  corporation  ships 
its  products  into  a  state  and  stores  them  there  in  charge  of  a  local  agent  who 
makes  delivery  in  the  original  packages  as  subsequently  directed,  it  is  transacting 
a  local  business,  American  Steel  etc.  Co.  v.  Speed,  192  U.  S.  500  (1904)  ; 
Armour  v.  Virginia,  246  U.  S.  1  (1918).  Where  a  corporation  maintains  its 
fiscal  officers  in  a  state  other  than  that  in  which  it  was  incorporated,  it  is  doing 
a  local  business.  Old  Dominion  Co.  v.  Commonwealth,  237  Mass.  269  (1921). 
For  the  application  of  the  principle  to  a  number  of  different  sets  of  facts,  see  the 
decisions  reported  under  the  name  of  Marconi  Wireless  Tel.  Co.  v.  Common- 
wealth, 218  Mass.  558  (1914)  and  Cheney  Bros.  Co.  v.  Massachusetts,  246 
U.S.  147  (1918). 


40  Taxation    in    Massachusetts  [part  i 

the  power  to  exclude  foreign  corporations  not  engaged  in 
interstate  commerce  altogether  a  state  may  permit  them 
to  enter  subject  to  such  conditions  as  it  may  see  fit  to 
impose.  One  of  the  conditions  may  be  the  payment  of  an  excise 
tax  for  the  privilege  of  doing  business  within  the  state,  and  no 
matter  how  excessive  or  unreasonable  in  amount  the  tax  may 
be,  or  how  much  more  onerous  than  the  tax  on  domestic  corpora- 
tions doing  a  like  business,  the  corporation  must  pay  it  or  stay 
outside  the  state.4  Having  once  admitted  a  foreign  corporation 
upon  the  payment  of  an  excise  tax  for  the  privilege  of  doing 
business  for  a  definite  period,  at  the  end  of  the  period  the  state 
may  exclude  such  corporation  altogether  or  impose  a  new  and 
additional  tax  upon  it  for  the  privilege  of  remaining.5 

There  are  however  three  well  established  limitations  upon  the 
power  of  a  state  to  impose  an  excise  upon  foreign  corporations 
for  the  privilege  of  doing  a  local  business  within  its  limits. 

(1)  A  state  cannot  make  its  grant  of  the  privilege  of  doing 
a  local  business  within  its  limits  conditional  upon  the  surrender 
by  the  corporation  accepting  the  privilege  of  any  of  its  rights 
under  the  constitution  of  the  United  States;  and  if  the  state 
attempts  to  encumber  its  grant  with  such  conditions  the  grant 
will  be  valid  but  the  conditions  invalid.  Thus  a  state  cannot  al- 
low a  foreign  corporation  to  do  a  local  business  within  its  limits 
on  condition  that  it  will  pay  an  excise  tax  on  its  interstate 
business,6  or  on  condition  that  it  will  pay  a  tax  on  property 
located  in  other  states  which  the  state  has  no  power  under  the 
constitution  to  tax  directly.  It  accordingly  follows  that  an 
excise  tax  imposed  upon  foreign  corporations  for  the  privilege 
of  doing  a  local  business  within  a  state  which  is  graded  accord- 
ing to  the  authorized  capital  of  such  corporations  or  the  aggre- 

4  Liverpool  Insurance  Co.  v.  Massachusetts,  10  Wall.  566  (1870);  Pembina 
etc.  Mining  Co.  v.  Pennsylvania,  125  U.  S.  181  (1888);  Ratterman  v.  Western 
Union  Tel.  Co.  127  U.  S.  423  (1888);  Maine  v.  Grand  Trunk  Ry.  142  U.  S. 
217  (1891);  Pacific  Express  Co.  v.  Seibert,  142  U.  S.  350  (1892);  Horn  Silver 
Mining  Co.  v.  New  York,  143  U.  S.  305  (1892);  Lehigh  Valley  R.  R.  Co. 
v.  Pennsylvania,  145  U.  S.  200  (1895) ;  Attorney  General  v.  Bay  State  Mining 
Co.,  99  Mass.  148  (1868);  Attorney  General  v.  Electric  Storage  Battery  Co., 
188  Mass.  239  (1905);  Baltic  Mining  Co.  v.  Commonwealth.  207  Mass.  381 
(1911). 

5  Philadelphia  etc.  Ass'n.  v.  New  York,  119  U.  S.  110  (1886). 

6  Western  Union  Tel.  Co.  v.  Kansas,  216  U.  S.  1  (1910) ;  Atchison  etc. 
R.  R.  Co.  v.  O'Connor,  223  U.  S.  280  (1912) ;  Oklahoma  v.  Wells  Fargo  &  Co., 
223  U.  S.  290  (1912);  Looney  v.  Crane  Co.,  245  U.  S.  178  (1917). 


sect.  23]  Interstate   Commerce  41 

gate  value  of  their  capital  stock,  or  their  total  business  or  re- 
ceipts or  income,  if  applied  to  a  corporation  which  carries  on 
interstate  commerce,  or  has  any  property  in  another  state  or 
does  any  business  in  another  state,  is  in  effect  a  tax  on  inter- 
state commerce,  or  on  property  located  or  on  business  carried 
on  in  another  state,  and  is  beyond  the  power  of  the  state  to 
impose.7  A  law  imposing  an  excise  tax  on  foreign  corporations 
for  the  privilege  of  doing  a  local  business  within  the  state 
which  takes  into  consideration  the  aggregate  capital  as  one  of 
the  elements  in  determining  the  amount  of  tax  is  not  however 
unconstitutional  if  the  court  can  see  that  the  law  is  not  in 
effect  an  attempt  to  reach  subjects  of  taxation  beyond  the 
jurisdiction  of  the  state.8 

7  Gloucester  Ferry  Co.  v.  Pennsylvania,  114  U.  S.  196  (1885) ;  Western 
Union  Tel.  Co.  v.  Kansas,  216  U.  S.  1  (1910);  Pullman  Co.  v.  Kansas,  216  U.  S. 
56  (1910) ;  Atchison  etc.  R.  R.  Co.  v.  O'Connor,  223  U.  S.  280  (1912) ;  Interna- 
tional Paper  Co.  v  Massachusetts,  246  U.  S.  135  (1918). 

8  Thus  the  aggregate  capital  stock  of  a  foreign  corporation  engaged  in 
interstate  commerce  may  be  used  as  a  measure  of  taxation  when  only  that 
portion  of  the  aggregate  value  of  the  capital  stock  is  taxed  which  is  proportionate 
to  the  business  done  or  property  owned  within  the  state  as  compared  with 
its  total  property  or  business.  Western  Union  Tel.  Co.  v.  Attorney  General, 
125  U.  S.  530  (1888);  Massachusetts  v.  Western  Union  Tel.  Co.,  141  U.  S.  40 
(1891).  The  Massachusetts  statutes  relating  to  the  taxation  of  foreign  corpora- 
tions brought  about  an  extremely  involved  situation.  The  levy  of  an  excise 
tax  on  foreign  corporations  proportioned  to  their  aggregate  capital  stock  was 
sustained  in  Attorney  General  v.  Bay  State  Mining  Co.  99  Mass.  148  (1868) 
in  the  case  of  a  statute  applicable  to  mining  companies  having  an  executive 
office  in  Massachusetts;  but  no  general  excise  on  foreign  corporations  was 
imposed  until  1903,  when  by  St.  1903  c.  437,  §  75  a  tax  was  imposed  of  one 
one  hundredth  of  one  per  cent  of  the  par  value  of  the  capital  stock,  deducting 
local  taxes,  the  tax  in  any  event  not  to  exceed  $2000.  American  Can  Co.  v. 
Commonwealth,  188  Mass.  1  (1905).  By  St.  1907  c.  578  this  tax  was  increased  to 
one-fiftieth  of  one  per  cent  and  the  deduction  of  local  taxes  omitted,  the 
limit  of  $2000  being  however  retained.  It  was  held  that  these  statutes  were 
inapplicable  to  a  foreign  corporation  having  a  place  of  business  in  this  state 
only  for  interstate  commerce,  Attorney  General  v.  Electric  Storage  Battery 
Co.,  188  Mass.  239  (1905)  or  to  a  foreign  corporation  carrying  on  both  inter- 
state and  local  business  in  this  state  if  the  two  were  so  connected  that  the 
local  business  could  not  be  given  up  without  serious  detriment  to  the  inter- 
state business,  Baltic  Mining  Co.  v.  Commonwealth,  207  Mass.  381  (1911);  but 
that  these  statutes  were  applicable  to  corporations  engaged  in  ordinary  mer- 
cantile business  partly  interstate  and  partly  local  when  there  was  no  insuperable 
difficulty  in  separating  the  two  branches  of  the  business,  and  so  construed  were 
constitutional.  S.  S.  White  Dental  Mfg.  Co.  v.  Commonwealth,  212  Mass.  35 
(1912);  Keystone  Watch  Case  Co.  v.  Commonwealth.  212  Mass.  50  (1912); 
Marconi  Wireless  Tel.  Co.  v.  Commonwealth,  218  Mass.  558  (1914).  The 
constitutionality  of  the  1907  statute  was  sustained  by  the  Supreme  Court  of  the 
United  States  in  Baltic  Mining  Co.  v.  Massachusetts,  231  U.  S.  68  (1913)  and 
Cheney  Bros.  Co.  v.  Massachusetts,  246  U.  S.  146  (1918),  the  court  evidently 
considering  that  the  maximum   limitation  indicated  that  the  tax  was  not  in 


42  Taxation    in   Massachusetts  [part  i 

(2)  When  the  interstate  and  the  local  business  of  a  foreign 
corporation  are  so  closely  connected  that  it  would  be  almost  if 
not  quite  impossible  to  separate  them,  as  is  usually  the  case  with 
a  railroad  company  or  a  telegraph  company,  the  state  cannot 
require  the  corporation  to  pay  an  excessive  or  unreasonable  tax 
for  the  privilege  of  carrying  on  the  local  business,  since  such  a 
tax  is  in  effect  either  a  prohibition  of  or  a  burden  upon  the  inter- 
state business  of  the  corporation.9  But  even  when  the  interstate 
and  local  business  of  a  corporation  are  interwoven,  a  reasonable 
tax  based  upon  the  local  business  or  the  property  engaged  there- 
in may  be  imposed;10  and  in  the  case  of  an  ordinary  mercantile 
business,  in  which  the  local  and  interstate  operations  are  readily 
separable,  the  corporation  cannot  be  heard  to  complain  of  the 
tax  upon  its  local  business,  since  it  may  abandon  such  business 
if  it  so  desires  and  continue  only  its  interstate  operations.11 

(3)  When  a  foreign  corporation  has  come  into  a  state  in 


effect  a  tax  on  the  entire  capital  stock  of  the  company.  By  St.  1914  c.  724, 
§  1,  however,  the  legislature  imposed  a  tax  of  one  one  hundredth  of  one 
per  cent  upon  the  capital  stock  of  foreign  corporations  in  excess  of  ten  million 
dollars.  The  constitutionality  of  this  statute  was  sustained  in  the  state  courts 
on  the  ground  that  the  privilege  of  doing  a  local  business  was  more  valuable 
to  a  foreign  corporation  with  a  large  capital,  International  Paper  Co.  v.  Com- 
monwealth, 228  Mass.  101  (1917);  but  the  Supreme  Court  of  the  United  States 
held  that  the  enactment  of  the  1914  statute  in  effect  removed  the  limitation 
contained  in  the  earlier  one,  and  that  taken  together  the  two  statutes  amounted 
to  an  attempt  by  the  state  to  tax  the  entire  capital  stock  of  foreign  corpora- 
tions, and  so  both  statutes  were  held  unconstitutional.  International  Paper  Co. 
v.  Massachusetts,  246  U.  S.  135  (1918).  It  was  subsequently  held  in  the  state 
court  that  a  tax  assessed  under  the  earlier  statute  though  on  a  corporation 
having  less  than  ten  million  dollars  capital  and  so  not  affected  by  the  1914 
statute  was  invalid,  Liquid  Carbonic  Co.  v.  Commonwealth,  232  Mass.  19  (1919); 
but  the  1914  statute  having  been  repealed  by  St.  1918  c.  76  the  earlier  statute 
with  the  maximum  limitation  of  $2000  again  became  constitutional  and  valid, 
Lawton  Spinning  Co.  v.  Commonwealth  232  Mass.  28  (1919). 

»  Western  Union  Tel.  Co.  v.  Kansas,  216  U.  S.  1  (1910);  Pullman  Co.  v. 
Kansas,  216  U.  S.  56  (1910) ;  Ludwig  v.  Western  Union  Tel.  Co.,  216  U.  S.  146 
(1910);  Western  Union  Tel.  Co.  v.  Andrews,  216  U.  S.  165  (1910);  Atchison 
etc  R.  R.  Co.  v.  O'Connor,  223  U.  S.  280  (1912);  Meyer  v.  Wells,  223  U.  S. 
298  (1912);  Looney  v.  Crane  Co.,  245  U.  S.  178  (1917);  Baltic  Mining  Co.  v. 
Commonwealth,  207  Mass.  381  (1911);  Marconi  Wireless  Tel.  Co.  v.  Common- 
wealth, 218  Mass.  558  (1914). 

10  St.  Louis  Southwestern  R.  R.  Co.   v.  Arkansas,  235  U.  S.  350    (1914). 
A  reasonable   occupation  tax   on  local  business   is  not   necessarily   invalid,  al- 
though  the    local    and    interstate   business   are    inseparable,    the    local    business ' 
makes  no  profits  and  the  tax  must  be  paid  out  of  the  profits  of  the  interstate 
business.     Postal  Tel.  Cable  Co.  v.  Fremont.  255  U.  S.  124   (1921). 

11  Osborne  v.  Florida,  164  U.  S.  650  (1897);  Pullman  Co.  v.  Adams  ,189 
U.  S.  420  (1903);  Allen  v.  Pullman's  Palace  Car  Co.,  191  U.  S.  171  (1903); 
Kehrer  v.  Stewart,  197  U.  S.  60  (1905);  Baltic  Mining  Co.  v.  Massachusetts, 
231  U.  S.  68  (1913);  Cheney  Bros.  Co.  v.  Massachusetts,  246  U.  S.  146  (1918); 
Marconi  Wireless  Tel.  Co.  v.  Commonwealth,  218  Mass.  558  (1914). 


sect.  24]  Interstate   Commerce  43 

compliance  with  its  laws  and  has  acquired  property  of  a  fixed 
and  permanent  nature  therein,  the  state  cannot  thereafter  sub- 
ject it  to  a  new  and  additional  excise  tax  not  imposed  upon 
domestic  corporations  doing  a  similar  business.12  This  principle 
however  does  not  apply  to  property  which  in  the  nature  of  things 
can  be  sold  in  the  general  market  so  as  to  yield  a  fair  return  for 
the  cost,  but  only  to  property  such  as  a  railroad  line,  irretriev- 
ably devoted  to  a  limited  use.13 

24.   Taxation  of  Property  Used  in  Interstate  Commerce 

Property  used  solely  for  the  purpose  of  carrying  on  interstate 
commerce,  such  as  an  interstate  bridge 1  and  interstate  railroad 
or  telegraph  lines,  or  ships  used  in  the  interstate  carrying  trade, 
is  taxable  in  the  state  in  which  it  is  situated  in  the  same  manner 
as  other  property.2  On  the  other  hand,  goods  imported  from  a 
foreign  country  cannot  be  taxed  by  a  state  before  they  are  sold; 
but  the  lack  of  power  of  the  states  in  this  respect  is  not  based 
on  the  ground  that  such  a  tax  would  constitute  an  unconstitu- 
tional burden  on  foreign  commerce,  but  on  the  ground  that 
it  would  in  effect  constitute  a  duty  on  imports  which  the  states 
are  specifically  forbidden  to  impose  and  would  conflict  with  the 
acts  of  Congress  laying  duties  on  imports  the  payment  of  which 
carries  the  right  to  sell  the  goods.3  Consequently  goods  brought 
into  one  state  from  another  may  be  taxed  while  in  the  original 
package  and  before  they  are  sold  if  they  are  taxed  in  the  same 
manner  as  goods  made  within  the  state;4  but  no  state  can  con- 
stitutionally impose  a  tax  which  operates  in  such  a  way  as  to 
discriminate   against   goods   brought   in    from   another   state.5 

12  Southern  Ry.  Co.  v.  Greene,  216  U.  S.  400  (1910). 

13  Cheney  Bros.  Co.  v.  Massachusetts,  246  U.  S.  147,  156  (1918)  affirming 
218  Mass.  558,  579  (1914)  sub.  nom.  Marconi  Wireless  Tel.  Co.  v.  Commonwealth. 

1  Henderson  Bridge  Co.  v.  Henderson,  173  U.  S.  622  (1899). 

2  Marye  v.  Baltimore  etc.  R.  R.  Co.,  127  U.  S.  123  (1888);  Atlantic  etc. 
Tel.  Co.  v.  Philadelphia,  190  U.  S.  163  (1903);  Old  Dominion  Steamship  Co. 
v.  Virginia,  198  U.  S.  307  (1905). 

3  Brown  v.  Maryland,  12  Wheat,  419  (1827),  see  also  supra  §  13. 

4  Woodruff  v.  Parham,  8  Wall.  123  (1868) ;  Brown  v.  Houston,  114  U.  S. 
622  (1885) ;  Emert  v.  Missouri,  156  U.  S.  296  (1895) ;  Kelley  v.  Rhoads,  188  U.  S. 
1  (1903);  American  Steel  etc.  Co.  v.  Speed,  192  U.  S.  520  (1904). 

5  Welton  v.  Missouri,  91  U.  S.  275  (1875) ;  Cook  v.  Pennsylvania,  97  U.  S. 
566  (1878) ;  Guy  v.  Baltimore.  100  U.  S.  439  (1879) ;  Webber  v.  Virginia.  103 
U.  S.  344  (1880) ;  Walling  v.  Michigan,  116  U.  S.  455  (1886) ;  Darnell  v.  Mem- 
phis, 208  U.  S.  113  (1908);  Bethlehem  Motors  Corp.  v.  Flynt  U.  S. 
(1921).  A  statute  imposing  a  tax  on  the  sale  of  goods  brought  in  from  another 
state  is  not  unconstitutional  if  the  sale  of  goods  manufactured  within  the  state  is 


44  Taxation    in   Massachusetts  [part  i 

Goods  brought  together  and  prepared  for  export  to  other  states 
or  countries  may  be  taxed  in  the  same  manner  as  other  property 
within  the  state  at  any  time  before  they  have  started  on  their 
final  journey.6 

Goods  while  actually  in  transit  between  two  states  are  not 
subject  to  local  taxation,  and  do  not  forfeit  their  exemption  by 
short  halts  incidental  to  the  journey;7  but  when  there  is  a  busi- 
ness purpose  or  advantage  in  delay  during  which  an  article  in 
interstate  commerce  secures  the  protection  of  the  state,  it  is 
taxable  where  it  is  kept  during  the  period  of  such  delay.8  When 
property  brought  from  another  state  has  reached  its  final  desti- 
nation it  is  taxable  even  before  it  is  unloaded;9  and  property 
brought  in  from  another  state  and  held  for  the  convenience  of 
the  owner  prior  to  completing  its  journey  in  the  same  state  is 
clearly  taxable.10 

A  state  may  exercise  its  power  to  tax  property  used  for 
'the  purposes  of  interstate  commerce  in  any  fair  and  reasonable 
manner,  as  by  assessing  the  average  number  of  articles  of  a 
certain  character  belonging  to  the  taxpayer  within  the  state 
during  the  year  instead  of  the  specific  articles  within  the  state 
on  a  certain  day,11  or  by  the  use  of  the  so-called  "unit  sys- 
tem".12 A  franchise  to  engage  in  interstate  commerce  may  be 
taxed  as  property  if  the  franchise  was  not  granted  by  the  United 
States  and  the  tax  is  at  no  greater  rate  than  the  tax  on  other 
property  of  similar  character.13    A  tax  on  a  corporation  engaged 

subjected  to  a  substantially  similar  tax,  Woodruff  v.  Parham,  8  Wall.  123  (1868), 
and  a  statute  exempting  from  the  general  corporation  tax  corporations  wholly 
engaged  in  manufacture  within  the  state  is  not  unconstitutional  if  no  discrimi- 
nation against  goods  manufactured  in  other  states  appears  to  have  been  in- 
tended.   New  York  v.  Roberts,  171  U.  S.  658  (1898). 

«  Coe  v.  Errol,  116  U.  S.  524  (1886) ;  Diamond  Match  Co.  v.  Ontonagon,  188 
U.  S.  96  (1903). 

»  Kelley  v.  Rhoads,  188  U.  S.  1  (1903);  Bacon  v.  Illinois,  227  U.  S.  504 
(1913). 

s  Thomas  v.  Gay,  169  U.  S.  264  (1898) ;  Bacon  v.  Illinois,  227  U.  S.  504 
(1913);  Susquehanna  Coal  Co.  v.  South  Amboy,  228  U.  S.  665  (1913). 

9  Pittsburgh  etc.  Coal  Co.  v.  Bates,  156  U.  S.  584  (1895). 

10  American  Steel  etc.  Co.  v.  Speed,  192  U.  S.  520  (1904);  General  Oil  Co. 
v.  Crain,  209  U.  S.  211  (1908). 

11  Pullman's  Palace  Car  Co.  v.  Pennsylvania,  141  U.  S.  18  (1891);  American 
Refrigerator  Transit  Co.  v.  Hall,  174  U.  S.  70  (1899);  Union  Refrigerator  Tran- 
sit Co.  v.  Lynch,  177  U.  S.  149  (1900). 

12  See  infra  §  42. 

is  Delaware  Railroad  Tax,  18  Wall.  206  (1873) ;  Postal  Tel.  Cable  Co.  v. 
Adams,  155  U.  S.  688  (1894) ;  New  York.  etc.  R.  R.  Co.  v.  Pennsylvania,  158 
U.  S.  431  (1895);  St.  Louis  etc.  Ry.  Co.  v.  Missouri  U.  S.  (1921). 


sect.  25]  Interstate   Commerce  45 

in  interstate  commerce  even  though  in  the  form  of  an  excise 
on  its  franchise  will  be  sustained  if  the  tax  is  measured  by  the 
value  of  its  property  within  the  state  and  collected  in  the  same 
manner  as  property  taxes.14 

25.   Taxation  of  Receipts  Derived  from  Interstate 

Commerce 

A  state  has  no  power  to  levy  a  tax  upon  the  gross  receipts 
derived  from  interstate  commerce,  and  consequently  cannot  con- 
stitutionally tax  the  entire  gross  receipts  of  an  individual  citizen 
or  even  of  a  domestic  corporation  when  part  of  such  receipts 
are  derived  from  interstate  commerce.1  The  fact  that  a  corpo- 
ration is  engaged  in  interstate  commerce  does  not  however  remove 
its  receipts  from  liability  to  state  taxation,  for  it  may  lawfully 
be  taxed  on  so  much  of  its  receipts  as  are  derived  from  local 
business,2  and  even  when  a  tax  is  assessed  upon  its  receipts  as 
a  whole,  without  separation  or  apportionment,  that  part  of  the 
tax  only  is  invalid  which  is  assessed  upon  the  receipts  from  inter- 
state commerce.3 

The  use  of  gross  receipts  as  a  measure  of  the  taxation  of 
corporations  engaged  in  interstate  commerce  is  not  however 
wholly  denied  to  the  states,  and  when  the  gross  receipts  are 
employed  as  a  reasonable  guide  to  determining  the  value  of 
the  franchise  of  a  corporation  or  of  its  property  within  the  state 
and  no  other  tax  is  imposed  upon  the  corporation,  the  tax  will 
be  sustained,  even  if  it  appears  on  its  face  to  be  an  excise  on  the 
privilege  of  engaging  in  interstate  commerce.4 

14  Western  Union  Tel.  Co.  v.  Attorney  General,  125  U.  S.  530  (1888); 
Attorney  General  v.  Western  Union  Tel.  Co.,  141  U.  S.  40  (1891);  Maine  v. 
Grand  Trunk  Ry.  Co,  142  U.  S.  217  (1891);  Postal  Tel.  Cable  Co.  v.  Adams, 
155  U.  S.  688  (1895);  United  States  Express  Co.  v.  Minnesota,  223  U.  S.  335 
(1912). 

1  Philadelphia  etc.  Steamship  Co.  v.  Pennsylvania,  122  U.  S.  326  (1887); 
Ratterman  v.  Western  Union  Tel.  Co,  127  U.  S.  411  (1888) ;  Western  Union 
Tel.  Co.  v.  Seay,  132  U.  S.  472  (1889) ;  Crew  Levick  Co.  v.  Pennsylvania,  245 
U.  S.  292  (1917).  A  tax  "equal  to"  a  certain  proportion  of  the  gross  receipts  is 
equivalent  to  a  tax  on  the  receipts,  Galveston  etc.  R.  R.  Co.  v.  Texas,  210  U.  S. 
217  (1908). 

2  Pacific  Express  Co.  v.  Seibert,  142  U.  S.  339  (1892). 

3  Ratterman  v.  Western  Union  Tel.  Co,  127  U.  S.  411  (1888).  A  state  law 
taxing  receipts  from  the  local  business  only  of  public  utility  companies  is 
constitutional,  although  it  replaces  a  law  by  which  all  receipts  were  taxed 
at  a  lower  rate  and  as  to  most  companies  imposes  the  same  amount  of  tax  as 
the  earlier  law.    Ohio  Tax  Cases.  232  U.  S.  576  (1914). 

*  Maine  v.  Grand  Trunk  R.  R.  Co,  142  U.  S.  217  (1891);  Tinted  States 
Express  Co.  v.  Minnesota.  223  U.  S.  335  (1912);  Cudahy  Packing  Co.  v. 
Minnesota,  246  U.  S.  450  (1918). 


46  Taxation   in   Massachusetts  [part  i 

A  state  may  constitutionally  tax  the  net  income  of  an  indi- 
vidual resident  or  of  a  domestic  corporation  although  the  whole 
or  part  of  such  income  was  derived  from  interstate  commerce.5 
The  difference  in  effect  between  a  tax  measured  by  gross  receipts 
and  one  measured  by  net  income,  recognized  by  the  decisions,  is 
manifest  and  substantial,  and  it  affords  a  workable  basis  of  dis- 
tinction between  a  direct  and  immediate  burden  upon  the  busi- 
ness affected  and  a  charge  that  is  only  indirect  and  incidental.  A 
tax  upon  gross  receipts  affects  each  transaction  in  proportion 
to  its  magnitude  and  irrespective  of  whether  it  is  profitable  or 
otherwise.  Conceivably  it  may  be  sufficient  to  make  the  dif- 
ference between  profit  and  loss,  or  so  to  diminish  the  profit  as 
to  impede  or  discourage  the  conduct  of  the  commerce.  A  tax 
upon  the  net  profits  has  not  the  same  deterrent  effect,  since  it 
does  not  arise  at  all  unless  a  gain  is  shown  over  and  above  ex- 
penses and  losses  and  the  tax  cannot  be  heavy  unless  the  profits 
are  large.  Upon  the  same  principle,  a  state  may  tax  the  net  in- 
come of  a  non-resident  individual  or  foreign  corporation  derived 
from  business  carried  on  within  its  limits,  although  such  business 
consists  in  whole  or  in  part  of  interstate  commerce.6 


TAXATION   OF  THE  PROPERTY  AND 
INSTRUMENTALITIES   OF  THE  UNITED    STATES 

26.  Taxation  of  the  Property  of  the  United  States 

It  necessarily  follows  from  the  grant  to  the  United  States 
government  by  the  constitution  of  certain  powers  and  duties  be- 
yond the  control  of  the  states  that  the  states  cannot  burden  that 
government  in  the  exercise  of  such  powers  or  the  perform- 
ance of  such  duties,  and  that  consequently  a  state  cannot  tax  the 
means  and  instrumentalities  employed  by  the  United  States  in 
the  exercise  of  the  functions  assigned  to  it  by  the  constitution.  In 
such  cases  it  makes  no  difference  how  reasonable,  or  how  univer- 
sal and  indiscriminately  the  tax  may  be ;  the  inability  of  a  state 

4 

s  United  States  Glue  Co.  v.  Oak  Creek.  247  U.  S.  321  (1918). 

«  Shaffer  v.  Carter.  252  U.  S.  37  57  (1920) ;  Underwood  Typewriter  Co.  v. 
Chamberlain.  254  U.  S.  113  (1920) ;  H.  P.  Hood  &  Sons  v.  Commonwealth,  2?5 
Mass.  572  (1920). 


sect.  26]  Taxation  of   Instrumentalities  47 

to  interfere  by  means  of  a  tax  with  the  functions  of  the  federal 
government  is  established.1 

A  state  cannot  tax  the  property  of  the  United  States  though 
situated  within  the  territorial  limits  of  the  state,  whether  such 
property  is  devoted  to  public  and  governmental  uses  or  merely 
held  as  an  asset  of  monetary  value;2  but  property  in  which  the 
title  of  the  United  States  is  less  than  the  absolute  and  unencum- 
bered fee  may  be  taxed  with  respect  to  the  estates  or  interests 
in  private  ownership;3  and  when  Congress  has  authorized  it, 
a  state  may  tax  the  property  of  the  United  States.4 

Persons  who  reside  on  lands  within  a  state  purchased  by  or 
ceded  to  the  United  States,  although  there  has  been  no  other  res- 
ervation by  the  state  of  jurisdiction  over  such  lands  than  the 
right  to  serve  civil  and  criminal  process,  are  subject  to  taxation 
for  their  polls  and  personal  estate  by  the  state.5  So  also  property 
of  individuals  held  in  a  government  warehouse  prior  to  the  pay- 

1  McCulloch  v.  Maryland,  4  Wheat.  316  (1819) ;  Williams  v.  Talladega, 
226  U.  S.  404  (1912);  Farmers'  etc.  Savings  Bank  v.  Minnesota,  232  U.  S.  516 
(1914);  Choctaw  etc.  R.  R.  Co.  v.  Harrison,  235  U'.  S.  292  (1914);  Johnson  v. 
Maryland,  254  U.  S.  51  (1920). 

2  Van  Brocklin  v.  Tennessee,  117  U.  S.  153  (1886) ;  Sherwin  v.  Wigglesworth, 
129  Mass.  64  (1880).  Thus  public  lands  held  by  the  United  States  for  purposes 
of  distribution  and  sale  are  not  subject  to  taxation  by  the  state  in  which  they 
are  situated.  McGoon  v.  Scales,  9  Wall.  23  (1869) ;  Wisconsin  Central  R.  R. 
Co.  v.  Price  County,  133  U.  S.  496  (1889) ;  Hussman  v.  Durham,  165  U.  S.  144, 
(1897).  When  such  lands  have  been  conveyed  to  an  individual  purchaser  or 
patentee  they  immediately  become  subject  to  taxation  by  the  state.  Carroll  v. 
Safford,  3  How.  441  (1844);  Union  Pacific  R.  R.  Co.,  v.  McShane,  22  Wall.  444 
(1874);  Stryker  v.  Goodnow,  123  U.  S.  527  (1887).  When  the  United  States, 
though  retaining  the  legal  title  to  land,  holds  it  in  trust  for  one  who  has  per- 
formed the  requisite  conditions,  enjoys  the  beneficial  interest  and  is  en- 
titled presently  to  the  final  issuance  of  a  patent,  the  state  may  tax  the  interest  of 
the  beneficial  owner.  Witherspoon  v.  Duncan,  4  Wall.  210  (1866);  Wisconsin 
Central  R.  R.  Co.  v.  Price  County,  133  U.  S.  496  (1889);  Bothwell  v.  Bingham 
County,  237  U.  S.  642  (1915).  A  right  of  entry  in  the  United  States  for  possi- 
ble breach  of  condition  will  not  remove  the  land  from  the  taxing  power  of 
the  state.  Union  Pacific  R.  R.  Co.  v.  McShane,  22  Wall.  444  (1874);  Central 
Pacific  R.  R.  Co.  v.  Nevada,  162  U.  S.  512  (1896);  Maish  v.  Arizona,  164  U.  S. 
599  (1896).  If  however  conditions  precedent  to  the  acquisition  of  title  have  not 
been  complied  with  the  land  is  not  taxable.  Kansas  Pacific  R.  R.  Co.  v.  Prescott, 
16  Wall.  603  (1872);  Hussman  v.  Durham,  165  U.  S.  144  (1897);  Sargeant  v. 
Herrick,  221  U.  S.  404  (1911). 

*  Forbes  v.  Gracey,  94  U.  S.  762  (1876) ;  Maish  v.  Arizona,  164  U.  S.  599 
(1896);  Baltimore  Shipbuilding  etc.  Co.  v.  Baltimore,  195  U.  S.  375  (1905); 
Elder  v.  Wood,  208  U.  S.  226  (1908). 

4  Central  Pacific  R.  R.  Co.  v.  Nevada,  162  U.  S.  512  (1896) ;  Northern 
Pacific  R.  R.  Co.  v.  Meyers,  172  U  .S.  589  (1899). 

5  Leavenworth  R.  R.  Co.  v.  Lowe,  114  U.  S.  525  (1885);  Thomas  v.  Gay, 
169  U.  S.  264  (1898) ;  Wagoner  v.  Evans,  170  U.  S.  588  (1898) ;  Foster  v.  Pryor, 
189  U.  S.  325  (1903).    See  however  Opinion  of  the  Justices,  I  Met.  580  (1840). 


48  Taxation    in    Massachusetts  [part  i 

ment  of  excise  taxes  thereon  is  taxable  in  the  state  in  which 
the  warehouse  is  situated.6 


27.   Securities  Issued  by  Authority  of  the  United  States 

No  state  may  tax  the  instrumentalities  which  the  United 
States  employs  to  execute  the  powers  conferred  upon  it  by  the 
constitution.  For  this  reason  a  state  cannot  tax  in  any  form 
the  obligations  of  the  United  States  issued  in  the  exercise  of  the 
power  to  borrow  money  upon  the  credit  of  the  United  States,1 
or  impose  a  stamp  tax  upon  the  notes  of  the  Bank  of  the  United 
States,2  or  tax  internal  revenue  stamps  as  property  of  an  indi- 
vidual.3 But  checks  and  warrants  on  the  Treasury  intended  for 
immediate  use  may  be  taxed  by  a  state.4  A  state  may  not  tax 
the  aggregate  property  5  or  the  aggregate  capital 6  of  a  corpora- 
tion, partnership  or  individual  if  part  of  the  property  of  the  tax- 
payer consists  of  United  States  bonds,  but  a  tax  on  the  whole  of 
the  nominal  capital  of  a  corporation  may  be  imposed  although 
part  of  its  assets  are  United  States  bonds,  as  the  tax  is  imposed 
irrespective  of  the  character  of  the  property,7,  and  shares  of  stock 
in  a  corporation  may  be  taxed  to  the  shareholder  at  their  full 
value  although  part  of  the  capital  of  the  corporation  is  invested 
in  United  States  bonds.8  When  property  is  the  measure  and 
not  the  subject  of  a  tax,  United  States  bonds  may  be  taken  into 

6  Carstairs  v.  Cochran,  193  U.  S.  10  (1904).  See  Farr  Alpaca  Co.  v.  Com- 
monwealth, 212  Mass.  156  (1912). 

1  Weston  v.  Charleston,  2  Pet.  449  (1829);  Bank  of  Commerce  v.  New 
York,  2  Black  620  (1862) ;  Bank  Tax  Case,  2  Wall.  200  (1864) ;  Provident  Savings 
Institution  v.  Massachusetts,  6  Wall.  611  (1867);  Banks  v.  The  Mayor,  7  Wall. 
16  (1868);  Bank  v.  Supervisors,  7  Wall.  26  (1868);  New  York  Bank  v.  New 
York  County,  7  Wall.  30  (1868) ;  Louisville  etc.  Bank  v.  Kentucky,  9  Wall.  353 
(1869);  Mitchell  v.  Leavenworth  County,  91  U.  S.  206  (1875);  Home  Insurance 
Co.  v.  New  York,  134  U.  S.  594  (1890);  Home  Savings  Bank  v.  Des  Moines, 
205  U.  S.  503  (1907). 

2  McCulIoch  v.  Maryland,  4  Wheat.  436  (1819). 

3  Palfrey  v.  Boston,  101  Mass.  329  (1869). 

4  Hibernia  Savings  etc.  Association  v.  San  Francisco,  200  U.  S.  310  (1908). 
s  Home  Savings  Bank  v.  Des  Moines,  205  U.  S.  503  (1907). 

6  Bank  of  Commerce  v.  New  York,  2  Black  620  (1862) ;  Bank  Tax  Case,  2 
Wall.  200  (1864) ;  Van  Allen  v.  Board  of  Assessors,  3  Wall.  573  (1865);  Bradley 
v.  Illinois,  4  Wall.  459  (1866);  Louisville  etc.  Bank  v.  Kentucky,  9  Wall. 
353  (1869);  Home  Savings  Bank.  v.  Des  Moines,  205  U.  S.  503  (1907). 

7  Bank  of  Commerce  v.  New  York,  2  Black  620  (1862);  Provident  Institu- 
tion v.  Massachusetts,  16  Wall.  611  (1867). 

8  New  York  v.  Tax  etc.  Commissioners,  4  Wall.  244  (1866);  Louisville  etc 
Bank  v.  Kentucky,  9  Wall.  353  (1869);  Cleveland  Trust  Co.  v.  Lauder,  184 
U.  S.  Ill  (1902). 


sect.  28]  Taxation  of   Instrumentalities  49 

consideration,  as  in  the  case  of  an  inheritance  tax,9  or  an  excise 
tax  on  corporate  frachises.10 

Since  territorial  governments  are  instrumentalities  of  the 
United  States,  a  state  has  no  power  to  tax  bonds  of  a  territorial 
government  or  of  any  of  its  constituent  municipalities.11  So  also 
it  has  been  held  that  the  bonds  of  federal  land  banks  may  be 
constitutionally  exempted  from  taxation  by  Congress.12 

When  a  person,  for  the  purpose  of  evading  taxation,  converts 
his  property  into  United  States  bonds  immediately  before  the 
assessment  day  and  reconverts  such  property  to  its  original  form 
immediately  afterward,  such  a  transaction  may  b.e  treated  as  a 
nullity  and  the  property  taxed  in  its  original  form.13  United 
States  bonds  may  also  be  seized  to  enforce  taxes  on  other  prop- 
erty of  the  same  owner.1 


14 


28.  Federal  Officers  and  Employees 

A  state  cannot  levy  an  excise  tax  on  the  performance  of 
public  duties  by  an  officer  of  the  United  States,  and  this  prin- 
ciple has  been  extended  so  far  as  to  render  a  general  excise 
tax  invalid  because  no  exception  was  embodied  in  the  statute 
in  favor  of  officers  of  the  United  States  acting  in  the  performance 
of  their  duties.1  A  sounder  result  would  have  been  to  hold  the 
statute  inapplicable  to  such  cases.  So  also  a  state  cannot  tax  an 
officer  of  the  United  States  on  account  of  the  income  or  emolu- 
ments of  his  office.2    It  has  however  been  held  that  the  state 

9  Plummer  v.  Coler,  178  U.  S..  117  (1900). 

10  Savings  Society  v.  Coite,  6  Wall.  602  (1867) ;  Provident  Institution  for 
Savings  v.  Massachusetts,  6  Wall.  612  (1867)  (tax  on  franchise  of  savings  bank), 
Hamilton  Manufacturing  Co.  v.  Massachusetts,  6  Wall.  632  (1867);  Home 
Insurance  Co.  v.  New  York,  134  U.  S.  594  (1889)  (tax  on  corporate  franchise), 
Manufacturers  Insurance  Co.  v.  Loud,  99  Mass.  146  (1868). 

11  Farmers'  etc.  Savings  Bank  v.  Minnesota,  232  U.  S.  516   (1914). 

12  Smith  v.  Kansas  City  Title  &  Trust  Co.,  255  U.  S.  180  (1921). 

13  Mitchell  v  Leavenworth  County,  91  U.  S.  206  (1875);  Shotwell  v.  Moore, 
129  U.  S.  590  (1889). 

14  Scottish  Union  etc.  Ins.  Co.  v.  Bowland,  196  U.  S.  611  (1905). 

1  Crandall  v.  Nevada,  6  Wall.  35  (1867).  In  Johnson  v.  Maryland^  254 
U.  S.  51  (1920)  it  was  held  that  a  state  law  requiring  a  license  for  the  operation 
of  automobiles  was  inapplicable  to  a  post  office  employee  in  the  course  of  his 
duty. 

2  Dobbins  v.  Erie  County,  16  Pet.  435  (1842).  After  a  federal  officer  has 
received  his  salary  and  deposited  it  in  a  bank,  it  may  be  subjected  to  the 
general  property  tax  by  the  state.  Dyer  v.  Melrose,  197  Mass.  99  (1908), 
affirmed,  213  U.  S.  594  (1909). 


50  Taxation    in   Massachusetts  [part  i 

may  lawfully  tax  the  income  of  persons  in  the  employ  or  service 
of  the  United  States  who  are  not  public  officers;3  but  the- dis- 
tinction is  narrow  and  how  far  the  state  can  go  in  this  direction 
is  open  to  considerable  doubt.4  It  has  also  been  held  that  a 
trustee  in  bankruptcy  it  not  exempt  from  state  taxation  with 
respect  to  the  property  of  the  bankrupt  in  his  hands 5  although  it 
is  probable  that  Congress  by  express  enactment  might  establish 
an  exemption  from  state  taxation  in  such  cases.  A  person  per- 
forming services  for  the  United  States  under  a  contract  is  not 
necessarily  exempt  from  state  taxation.  Thus  a  corporation 
engaged  in  constructing  a  public  work  under  contract  with  the 
United  States  is  taxable  by  the  state  upon  the  implements  used 
in  the  work.6 

29.   Federal  Charters  and  Franchises 

The  United  States  has  in  many  instances  granted  charters 
to  private  corporations  in  order  to  more  effectually  carry  out  the 
objects  for  which  the  national  government  was  established. 
Familiar  examples  are  the  national  banking  corporations  and 
the  transcontinental  railroad  companies,  which  were  created  by 
authority  of  Congress,  and  the  interstate  telegraph  companies, 
which  were  chartered  by  the  states  but  which  were  given  a  fran- 
chise by  Congress  to  operate  on  post  roads  throughout  the  coun- 
try. All  of  such  corporations  are  agencies  of  the  United  States, 
and  it  is  well  settled  that  even  in  the  absence  of  any  express 
exemption  by  Congress,  a  state  cannot  tax  such  a  corporation 
for  the  privilege  of  exercising  the  functions  allotted  to  it  by  the 
United  States,1  or  tax  its  property  in  such  a  way  as  to  impede 

3  In  Mclcher  v.  Boston,  9  Met.  73  (1845)  it  was  held  that  a  clerk  in  the 
post  office  was  taxable  by  the  city  with  respect  to  his  salary,  and  in  Palfrey 
v.  Boston,  101  Mass.  329  (1869)  it  was  held  that  a  dealer  in  United  States 
internal  revenue  stamps  was  not  exempt  from  taxation  as  a  quasi  officer  of  the 
United  States. 

4  In  Biscoe  v.  Tax  Commissioner,  236  Mass.  201  (1920),  it  was  held  that 
the  salary  of  the  vice-president  of  a  railroad  was  exempt  from  state  taxation 
while  the  railroad  was  under  federal  control. 

s  Swarts  v.  Hamm,  194  U.  S.  441   (1904). 

6  Gromer  v.  Standard  Dredging  Co.,  224  U.  S.  362  (1912).  So  also  a  state 
may  impose  a  tax  on  a  surety  company  based  on  premiums,  and  include 
premiums  on  bonds  of  United  States  officers.  Fidelity  etc.  Co.  v.  Pennsylvania, 
240  U.  S.  319  (1916). 

1  McCulloch  v.  Maryland,  4  Wheat.  316,  436  (1819).  A  state  may  however 
impose  a  tax  which  is  nominally  upon  the  franchise  of  a  corporation  chartered 
by  Congresss  if  it  is  in  reality  a  tax  upon  its  property  within  the  state.  Western 
Union  Tel.  Co.  v.  Attorney  General,  125  U.  S.  530  (1887);  Massachusetts  v. 
Western  Union  Tel.  Co.,  141  U.  S.  40  (1891). 


sect.  29]  Taxation  of   Instrumentalities  .    51 

or  prevent  the  performance  of  such  functions;  but  the  property 
of  such  a  corporation  within  the  limits  of  a  state  is  taxable  at 
the  same  rate  as  other  property  of  like  character.2 

The  power  of  the  state  to  tax  such  corporations  is  governed 
largely  by  the  acts  of  Congress  establishing  them.  The  taxation 
of  national  banks  has  been  explicitly  regulated  by  Congress  and 
is  discussed  in  another  portion  of  this  work.3  It  is  settled  that 
Congress  may  constitutionally  exempt  them  from  taxation  if  it 
sees  fit,4  or  permit  the  states  to  tax  them.5  The  transcontinental 
railroads  were  chartered  by  Congress  and  given  subsidies  and 
grants  of  land,  and  they  agreed  to  serve  the  government,  when 
required,  for  a  reasonable  compensation,  but  were  not  specifically 
exempted  from  taxation.  It  was  held  that  the  states  might  tax 
them  on  their  property6  but  not  on  their  operations  or  fran- 
chises.7 The  telegraph  companies  were  given  power  by  Congress 
to  maintain  lines  over  the  public  domain,  across  navigable 
streams  and  along  military  and  post  roads.  It  was  held  that  the 
companies  were  not  thereby  exempted  from  taxation  by  the 
states;8  but  a  state  cannot  make  payment  of  the  tax  a  condition 
precedent  to  entry  by  a  telegraph  company  within  its  jurisdic- 
tion.9 

A  state  has  no  power  to  tax  patent  rights,  since  such  rights 
are  a  franchise  created  for  federal  purposes  under  the  constitu- 
tion and  laws  of  the  United  States;10  but  a  patented  article  may 
be  taxed  as  property  at  its  full  value,  although  part  of  its  value 
is  derived  from  the  patent.11 

2  McCulloch  v.  Maryland,  4  Wheat.  316  (1819) ;  Henderson  Bridge  Co.  v. 
Kentucky,  166  U.  S.  150  (1897) ;  Keokuk  etc.  Bridge  Co.  v.  Illinois,  175  U.  S. 
626  (1900);  Williams  v.  Talladega,  226  U.  S.  404  (1912). 

3  Infra,  pages  505  to  515  inc. 

4  Flint  v.  Aldermen  of  Boston,  99  Mass.  141   (1868). 
8  Van  Allen  v.  The  Assessors,  3  Wall.  573  (1865). 

6  Thomson  v.  Union  Pacific  R.  R.  Co.,  9  Wall.  579,  588  (1869) ;  Union 
Pacific  R.  R.  Co.  v.  Peniston,  18  Wall.  5,  31  (1873).  The  fact  that  a  railroad 
right  of  way  was  intended  to  be  used  in  part  as  an  instrumentality  for  de- 
veloping Indian  coal  lands  does  not  exempt  its  right  of  way  from  taxation 
as  an  agency  of  the  federal  government.  Choctaw  etc.  R.  R.  Co.  v.  Mackey, 
U.  S.  (1921). 

»  California  v.  Central  Pacific  R.  R.  Co.,  127  U.  S.  1  (1888). 

8  Western  Union  Tel.  Co.  v.  Attorney  General,  125  U.  S.  530  (1887); 
Massachusetts  v.  Western  Union  Tel.  Co.,  141  U.  S.  40  (1891). 

9  Western  Union  Tel.  Co.  v.  Texas,  105  U.  S.  464  (1881). 

10  McCulloch  v.  Maryland,  4  Wheat.  316  (1819). 

11  Webber  v.  Virginia,  103  U.  S.  344  (1880). 


52  Taxation   in   Massachusetts  [part  i 

30.  Interference  with  Federal  Taxing  Powers 

It  follows  from  the  supremacy  of  the  United  States  under 
the  constitution  that  when  the  United  States  and  a  state  have 
concurrent  taxing  power  over  the  same  subject  matter,  the  right 
of  the  United  States  takes  precedence,  and  the  United  States 
must  be  paid  in  full,  even  if  insufficient  is  left  to  pay  the  tax  to 
the  state.1  It  has  however  never  been  held  that  the  state,  in 
valuing  the  property,  privilege  or  income  taxed  for  the  purpose 
of  its  own  tax,  must  deduct  the  tax  paid  to  the  United  States, 
although  if  it  fails  to  do  so  it  will  in  effect  impose  a  tax  on  the 
tax  paid  to  the  United  States. 

In  other  respects  however  the  state  cannot  tax  or  otherwise 
burden  the  federal  taxing  power.  It  cannot  tax  internal  revenue 
stamps  as  property,2  or  require  federal  tax  receipts  to  be  pub- 
lished 3  or  limit  the  enforcement  of  a  federal  tax  by  its  own  stat- 
utes relative  to  the  recording  of  liens.4 


DUE  PROCESS   OF  LAW 

31.  Application  of  the  Fourteenth  Amendment 

That  portion  of  the  Fourteenth  Amendment  to  the  consti- 
tution of  the  United  States  which  provides  that  no  state  shall 
deprive  any  person  of  his  life,  liberty  or  property  without  due  pro- 
cess of  law  nor  deny  to  any  person  within  its  jurisdiction  the 
equal  protection  of  the  laws  affects  the  power  of  taxation  in 
various  ways. 

In  matters  of  substance  it  prohibits  a  state  from  taxing  any 
persons  or  property  or  the  performance  of  any  acts  not  within 
its  territorial  jurisdiction;  and  from  arbitrarily  discriminating 
in  its  tax  laws  against  any  persons  or  property  within  its  jurisdic- 
tion ;  or  from  enacting  any  tax  laws  which  violate  the  fundamen- 
tal and  inherent  rights  of  a  citizen  and  amount  to  mere  arbitrary 
spoliation  under  the  guise  of  taxation.  In  matters  of  procedure 
it  prohibits  a  state  from  providing  any  forms  of  procedure  in 

1  United  States  v.  Fisher,  2  Cranch  258,  496  (1804). 

2  Palfrey  v.  Boston,  101  Mass.  329  (1869). 

3  North  Dakota  v.  Hanson.  215  IT.  S.  515  (1910). 
*  United  States  v.  Snyder,  149  U.  S.  210  (1893). 


sect.  32 J  Due   Process   of   Law  53 

tax  cases  which  are  essentially  arbitrary,  unjust  or  unfair,  or 
which  will  result  in  any  person  being  deprived  of  his  property 
without  a  fair  opportunity  to  assert  in  some  tribunal  acting 
judicially  whatever  substantive  rights  he  may  have. 

32.  Discriminatory  Taxation 

It  is  well  settled  that  there  is  nothing  in  the  Fourteenth 
Amendment  which  requires  a  state  to  tax  all  property  within 
its  jurisdiction  at  the  same  rate.  Different  classes  of  property 
may  be  taxed  at  different  rates  as  the  public  policy  of  the  state 
may  seem  to  require  and  excises  may  be  imposed  upon  certain 
occupations  and  not  upon  others  without  violating  the  provi- 
sions of  the  amendment  unless  there  is  a  clearly  hostile  discrim- 
ination against  certain  persons  or  classes,  not  based  upon  any 
reasonable  distinction.1  Certain  classes  of  property  may  be 
wholly  exempted  from  taxation  without  giving  rise  to  an  occa- 

1  Bell's  Gap  R.  R.  Co.  v.  Pennsylvania,  134  U.  S.  232,  237  (1890);  Home 
Insurance  Co.  v.  New  York,  134  U.  S.  606  (1890) ;  Giozza  v.  Tiernan,  148  U.  S. 
662  (1893).  Thus  all  corporations  may  be  put  in  one  class  for  purposes  of 
taxation  and  taxed  upon  a  different  basis  from  individuals  engaged  in  the  same 
business,  Michigan  Central  R.  R.  Co.  v.  Powers,  201  U.  S.  245  (1906);  Fort 
Smith  Lumber  Co.  v.  Arkansas,  251  U.  S.  532  (1920) ;  or  corporations  may  be 
classified  separately  according  to  the  business  done  by  them,  as  banks,  Provi- 
dent Institution  for  Savings  v.  Massachusetts,  6  Wall.  611  (1867);  railroad 
companies,  State  Railroad  Tax  Cases,  92  U.  S.  575  (1875);  Kentucky  Rail- 
road Tax  Cases,  115  U.  S.  321  (1885);  Charlotte  etc.  R.  R.  Co.  v.  Gibbes,  142 
U.  S.  386  (1892);  Florida  Central  etc.  R.  R.  Co.  v.  Reynolds,  183  U.  S.  471 
(1902);  Ohio  Tax  Cases,  232  U.  S.  576  (1914);  express  companies,  Pacific  Ex- 
press Co.  v.  Seibert,  142  U.  S.  339  (1892);  or  oil  companies,  Southwestern  Oil 
Co.  v.  Texas,  217  U.  S.  114  (1910).  An  inheritance  tax  law  which  taxes  at  a 
higher  rate  property  which,  though  taxable,  escaped  taxation  during  the  life 
of  the  decedent  is  constitutional.  Watson  v.  State  Comptroller,  254  U.  S. 
122  (1920).  A  distinction  may  be  made  between  steam  railroads  and  street 
railways,  Savannah  etc.  R.  R.  Co.  v.  Savannah,  198  U.  S.  392  (1905) ;  and 
between  surface  street  railways  and  those  operated  in  subways,  New  York  v. 
State  Board  of  Tax  Commissioners,  199  U.  S.  1  (1905).  The  franchises  of 
corporations  may  be  taxed  at  a  different  rate  from  tangible  property,  Coulter 
v.  Louisville  etc.  R.  R.  Co.,  196  U.  S.  599  (1905).  Securities  issued  by  corpora- 
tions may  be  taxed  at  a  different  rate  from  all  other  moneyed  securities.  Bell's 
Gap  R.  R.  Co.  v.  Pennsylvania,  134  U.  S.  232  (1890) ;  New  York  v.  Reardon, 
204- U.  S.  142  (1907).  A  distinction  may  be  made  between  corporations  doing 
business  for  profit  and  co-operative  or  mutual  associations,  Citizens  Tele- 
phone Co.  v.  Fuller,  229  U.  S.  322  (1913),  and  between  express  companies 
which  own  their  means  of  transportation  and  those  which  employ  the 
services  of  a  carrier,  Pacific  Express  Co.  v.  Seibert,  142  U.  S.  339  (1892), 
and  between  large  and  small  tracts  of  land,  King  v.  Mullins,  171  U.  S.  404 
(1898).  A  distinction  may  be  made  between  the  different  classes  of  insurance 
contracts,  Farmers'  etc.  Insurance  Co. -v.  Dobbins,  189  U.  S.  301  (1903).  A  tax 
on  theatres  may  be  graded  in  accordance  with  the  prices  for  admission  charged, 
Metropolis  Theatre  Co.  v.  Chicago,  228  U.  S.  61  (1913). 


54  Taxation    in    Massachusetts  [part  i 

sion  for  interference  by  the  federal  courts.2  The  latitude  of 
discretion  is  notably  wide  in  the  classification  of  property  for 
purposes  of  taxation  and  the  granting  of  partial  or  total  exemp- 
tions upon  grounds  of  policy.3  Nevertheless  the  classification 
must  be  reasonable  and  not  arbitrary,  and  must  rest  upon  some 
ground  of  difference  having  a  fair  and  substantial  relation  to 
the  object  of  the  legislation,  so  that  all  persons  similarly  cir- 
cumstanced shall  be  treated  alike.  A  discriminatory  tax  law 
cannot  be  sustained  as  a  lawful  classification  if  the  classification 
appears  to  be  altogether  illusory.4 

The  denial  by  a  state  of  the  equal  protection  of  the  laws 
within  the  meaning  of  the  Fourteenth  Amendment  may  also 
take  place  under  statutes  which  appear  on  their  face  to  require 
uniform  and  proportional  taxation,  but  are  enforced  in  such  a 
way  as  to  discriminate  arbitrarily  against  one  class  in  the  com- 
munity. The  purpose  of  the  equal  protection  clause  of  the 
Fourteenth  Amendment  is  to  secure  every  person  within  the 
state's  jurisdiction  against  intentional  and  arbitrary  discrimina- 
tion, whether  occasioned  by  express  terms  of  a  statute  or  by 
its  improper  execution  through  duly  constituted  agents.5    When 

2  Florida  Central  R.  R.  Co.  v.  Reynolds,  183  U.  S.  480  (1902);  Missouri 
v.  Dockery,  191  U.  S.  170  (1903). 

3  Royster  Guano  Co.  v.  Virginia,  253  U.  S.  412,  415  (1920). 

4  Thus  a  state  law  which  taxes  the  income  of  domestic  corporations  doing 
business  inside  the  state  whether  derived  from  business  carried  on  within  or 
without  the  state,  but  exempts  altogether  the  income  of  domestic  corporations 
which  do  no  business  within  the  state  is  unconstitutional  as  imposing  an 
arbitrary  discrimination.  Royster  Guano  Co.  v.  Virginia,  253  U.  S.  412  (1920). 
A  state  law  which  imposes  a  tax  upon  a  foreign  corporation  which  has  come'  into 
a  state  in  accordance  with  its  laws  and  acquired  property  of  a  permanent 
character,  at  a  higher  rate  than  -is  imposed  upon  domestic  corporations  for 
carrying  on  precisely  the  same  business  is  unconstitutional.  Southern  Ry.  Co. 
v.  Greene,  216  U.  S.  400,  417  (1910).  The  principle  of  the  last  cited  case  does 
not  prevent  a  state  from  requiring  of  foreign  corporations  which  have  not  already 
established  themselves  in  a  state  a  larger  tax  for  the  privilege  of  doing  business 
within  the  state  than  is  imposed  upon  domestic  corporations  upon  the  franchise 
which  the  state  grants  in  creating  them.  Kansas  City  etc.  R.  R.  Co.  v.  Stiles, 
242  U.  S.  Ill,  118  (1916);  Northwestern  Life  Ins.  Co.  v.  Wisconsin,  247  U.  S. 
132,    140    (1918). 

5  Sunday  Lake  Iron  Co.  v.  Wakefield,  247  U.  S.  350  (1918).  Mere  errors 
or  inequalities  in  assessment  violate  no  constitutional  rights  when  there  is  no 
habitual  and  intentionally  unfair  discrimination.  Coulter  v.  Louisville  etc. 
R.  R.  Co.,  196  U.  S.  599  (1905);  Sunday  Lake  Iron  Co.  v.  Wakefield,  247  U.  S. 
350  (1918) ;  Mackay  Tel.  etc.  Co.  v.  Little  Rock,  250  U.  S.  94  (1919).  Even  if 
assessors  without  authority  of  law  habitually  and  intentionally  discriminate  be- 
tween different  classes  of  property  there  is  no  violation  of  the  constitutional 
rights  of  those  discriminated  against  if  there  is  a  distinction  between  the  two 
classes  of  property  which  the  legislature  might  have  constitutionally  recognized. 
Missouri  v.  Dockery,  191  U.  S.  165  (1903). 


sect.  33]  Due   Process   of   Law  551 

it  appears  that  the  state  or  local  assessors  have  adopted  a  rule 
or  system  of  taxation  which  necessarily  operates  so  as  to  create 
an  arbitrary  discrimination  against  certain  persons  or  certain 
property  based  on  no  rational  grounds,  the  federal  constitution 
is  violated  as  clearly  as  if  the  discrimination  had  been  author- 
ized by  statute.  Thus  when  the  assessors  habitually  assess  the 
property  of  one  class  at  its  full  value  and  property  of  the  same 
character  at  less  than  its  full  value,6  or  assess  property  of  one 
person  at  its  income-producing  value  and  other  property  of  the 
same  character  belonging  to  others  at  its  sale  value 7  there  is  a 
violation  of  the  constitutional  rights  of  the  victims  of  such  dis- 
crimination. 

33.   Double  Taxation 

The  phrase  "double  taxation"  has  two  meanings,  one  narrow 
and  the  other  broad.  In  the  narrow  sense  no  taxation  is  double 
unless  the  same  property  is  twice  subjected  to  the  same  tax  by 
authority  of  the  same  state  while  other  like  property  is  taxed 
but  once.  Such  taxation  is  undoubtedly  unconstitutional.  In 
its  broad  sense  the  phrase  "double  taxation"  is  much  more  inclu- 
sive and  extends  to  all  cases  in  which  the  burden  of  two  or  more 
pecuniary  impositions,  whether  property  taxes  or  excises  and 
whether  imposed  by  authority  of  the  same  or  of  different  juris- 
dictions, falls  upon  the  same  property  within  the  same  taxing 
period.  Examples  of  double  taxation  in  the  broad  sense  include 
an  excise  upon  a  certain  use  of  property  and  a  property  tax 
upon  the  same  property;1  a  tax  upon  the  same  property  by  two 
different  states,  in  each  of  which  it  has  a  situs  sufficient  to  jus- 
tify a  tax;2  a  tax  upon  a  debt  and  a  tax  upon  the  property  of 
the  debtor  applicable  to  the  payment  of  the  debt,3  especially 
when  such  property  is  mortgaged  or  pledged  for  the  payment 
of  the  debt;4  a  tax  upon  depositors  in  a  bank  for  their  deposits 

6  Cummings  v.  Merchants'  National  Bank,  101  U.  S.  153  (1879) ;  Albany 
County  v.  Stanley,  105  U.  S.  305  (1881) ;  New  York  v.  Barker,  179  U.  S.  279 
(1900) ;  Raymond  v.  Chicago  Traction  Co.,  207  U.  S.  20  (1907). 

7  Wells  Fargo  &  Co.  v.  Johnson,  239  U.  S.  234  (1915). 

1  St.  Louis  Southwestern  R.  R.  Co.  v.  Arkansas.  235  U.  S.  350  (1914);  Com- 
monwealth v.  New  England  Slate  &  Tile  Co.,  13  Allen  391  (1866);  Opinion  of 
the  Justices,  195  Mass.  607,  611   (1908). 

2  Great  Barrington  v.  Berkshire  County  Commissioners,  16  Pick  572  (1835) ; 
Dwight  v.  Boston,  12  Allen  316  (1866).    See  as  to  inheritance  taxes,  injra  §  47. 

3  Williams  v.  Brookline,  194  Mass.  44   (1907). 

4  Knight  v.  Boston,  159  Mass.  551  (1893). 


56  Taxation    in   Massachusetts  [part  i 

and  a  tax  upon  the  bank  for  the  property  in  which  the  deposits 
are  invested  y'  and  a  tax  upon  a  corporation  for  its  franchise  or 
its  property  and  a  tax  upon  the  capital  stock  of  the  corporation 
whether  assessed  upon  the  corporation  or  upon  the  individual 
shareholders.6 

It  is  well  settled  that  a  tax  which  is  double  only  in  the  broad 
sense  is  not  on  that  account  in  violation  of  the  Fourteenth 
Amendment  or  the  corresponding  provisions  of  the  constitution 
of  the  state.7     Nevertheless  the  existence  of  double  taxation 

5  Commonwealth  v.  People's  Five  Cents  Savings  Bank,  5  Allen  428  (1862); 
Suffolk  Savings  Bank  Petitioner,  149  Mass.  1   (1889). 

e  Tennessee  v.  Whitworth,  117  TJ.  S.  129,  136  (1886);  Salem  Iron  Factory 
v.  Danvers,  10  Mass.  514  (1813). 

7  Property  may  be  taxed  at  the  same  time  in  two  states,  in  each  of  which 
it  has  a  taxing  situs.  Thus  in  Coe  v.  Errol,  116  U.  S.  517  (1886)  it  was  said 
(at  page  524)  that  the  fact  that  certain  logs  were  lawfully  taxed  in  Maine 
could  have  no  bearing  upon  the  question  whether  they  might  also  be  lawfully 
taxable  in  New  Hampshire.  In  Bemis  v.  Aldermen  of  Boston,  14  Allen  366 
(1867)  it  was  held  that  the  interest  of  an  inhabitant  of  Massachusetts  as  a 
partner  in  the  property  of  a  firm  carrying  on  business  in  Missouri  was  tax- 
able in  Massachusetts  although  the  property  of  the  firm  was  taxed  in  Missouri. 
In  Brooks  v.  West  Springfield,  193  Mass.  90  (1906)  it  was  held  that  a  bond 
owned  by  a  resident  of  Massachusetts  might  be  taxed  at  its  full  value,  though 
secured  by  mortgage  of  real  estate  outside  the  state  and  there  taxed.  In 
Fidelity  etc.  Trust  Co.  v.  Louisville,  245  U.  S.  54  (1917)  it  was  held  that  a 
bank  deposit  might  be  taxed  both  in  the  state  in  which  the  bank  was  situated 
and  in  the  state  in  which  the  depositor  lived.  In  Cream  of  Wheat  Co.  v.  Grand 
Forks,  253  U.  S.  325  (1920)  it  was  held  that  a  state  might  tax  the  intangible 
personal  property  of  a  resident  or  of  a  domestic  corporation,  although  the 
property  was  lawfully  taxed  in  other  states  in  which  it  was  situated.  In 
Commercial  National  Bank  v.  Chambers,  182  U.  S.  556  (1901)  it  was  held 
that  a  state  might  tax  the  shares  of  a  national  bank  without  dedu  tion  for 
real  estate  belonging  to  the  bank  and  situated  in  other  states.  In  Kidd  v. 
Alabama,  188  U.  S.  730  (1903);  Wright  v.  Louisville  etc.  R.  R.  Co.,  195  U.  S. 
219  (1904);  Dwight  v.  Boston,  12  Allen  316  (1866)  it  was  held  that  a  state 
might  tax  the  shares  of  stock  in  foreign  corporations  belonging  to  residents 
of  the  state  without  deduction  for  property  of  the  corporations  located  and 
taxed  in  other  states.  In  Bellows  Falls  Power  Co.  v.  Commonwealth,  222 
Mass.  51  (1915)  it  was  held  that  a  state  might  tax  stock  of  a  foreign  corporation 
owned  by  a  resident  of  the  state,  although  the  stock  was  also  taxed  in  the  state 
in  which  the  corporation  was  organized.  In  American  Glue  Co.  v.  Common- 
wealth, 195  Mass.  528  (1907)  it  was  held  that  a  state  might  tax  the  franchise 
of  a  domestic  corporation  without  deduction  for  real  estate  and  personal 
property  located  in  another  state  and  there  taxed.  In  Blackstone  v.  Miller, 
188  TJ.  S.  189  (1903)  and  Welch  v.  Treasurer  &  Receiver  General,  223  Mass. 
87  (1916)  it  was  held  that  the  same  property  might  be  subjected  to  an  in- 
heritance tax  both  in  the  state  in  which  the  decedent  last  dwelt  and  in  the 
state  in  which  the  property  was  situated.  In  Hunt  v.  Perry,  165  Mass.  287 
(1896)  it  was  held  that  a  state  might  tax  the  interest  of  a  resident  beneficiary 
of  a  trust  fund,  although  the  trust  fund  itself  was  taxed  to  the  trustee  in  the 
state  in  which  he  lived.  See  also,  Maguire  v.  Tax  Commissioner,  230  Mass. 
503  (1918),  affirmed,  Maguire  v.  Trefry,  253  U.  S.  12  (1920).  Property  may 
be  reached  indirectly  by  taxation  more  than  once  under  the  laws  of  the  same 


sect.  34]  Due   Process   of   Law  57 

even  in  its  broad  sense  is  not  without  its  effect  upon  rights  under 
the  law.  Thus  the  fact  that  property  is  reached  by  taxation 
in  some  other  way  is  a  sufficient  justification  for  exempting  it 
from  a  general  property  tax  under  a  constitution  requiring  pro- 
portional taxation;8  and  in  construing  a  tax  law  of  doubtful 
meaning  it  will  be  presumed  that  the  legislature  did  not  intend 
to  authorize  the  imposition  of  double  taxation,  even  in  its  broad 
sense.9 


34.  What  may  be  Subjected  to  a  Property  Tax 

No  state  can  constitutionally  tax  as  property  that  which  is 
not  property;  but  there  is  nothing  in  the  nature  of  things  or  in 
the  limitations  of  the  federal  constitution  which  restrains  a 
state  from  taxing  at  its  real  value  intangible  property.  A  prom- 
ise to  pay  by  a  solvent  debtor  is  as  certainly  property  as  a  build- 
ing or  a  steamboat,  and  is  as  fully  liable  to  taxation.  It  matters 
not  in  what  this  intangible  property  consists,  whether  privileges, 
corporate  franchises,  contracts  or  obligations.  It  is  enough  that 
it  is  property  which  though  intangible  exists,  which  has  value, 
produces  income  and  passes  current  in  the  markets  of  the  world.1 
Even  a  membership  in  a  stock  exchange  or  board  of  trade,  if  it 
has  value,  is  taxable  as  property.2  An  unliquidated  claim  for 
damages  against  a  solvent  debtor  is  not  taxable  as  property  if 


state.  A  state  may  impose  an  excise  upon  a  certain  act  and  at  the  same 
time  impose  a  property  tax  upon  the  property  used  in  the  per- 
formance of  the  act.  Owensboro  National  Bank  v.  Owensboro,  173  U.  S. 
664  (1899) ;  Ohio  Tax  Cases,  232  U.  S.  576  (1914) ;  St.  Louis  Southwestern  R.  R. 
Co.  v.  Arkansas,  235  U.  S.  350  (1914).  A  statute  is  not  unconstitutional  which 
levies  an  excise  on  the  business  of  issuing  annuity  contracts  while  the  annuitant 
is  taxed  on  the  annuity  as  income.  Mutual  Benefit  Life  Insurance  Co.  v. 
Commonwealth,  227  Mass.  63  (1917).  A  debt  may  be  taxed  to  the  creditor, 
although  the  property  of  the  debtor  applicable  to  the  payment  of  the  debt 
is  also  taxed.  Williams  v.  Brookline,  194  Mass.  44  (1907).  The  stockholders  of 
a  corporation  may  be  taxed  on  their  shares,  and  the  corporation  be  taxed  on 
its  property  or  franchise  by  the  same  state.  Bank  of  Commerce  v.  Tennessee, 
161  U.  S.  134  (1896);  Rogers  v.  Hennepin  County,  240  U.  S.  184  (1916);  Salem 
Iron  Factory,  v.  Danvers,  10  Mass.  514  (1813) ;  Tremont  Bank  v.  Boston,  1 
Cush.  142  (1848);  A.  J.  Tower  Co.  v.  Commonwealth,  223  Mass.  371  (1916). 
The  corporation  may  be  taxed  upon  its  capital  stock  and  the  shareholders  on 
their  shares  by  the  same  state.  Farrington  v.  Tennessee,  95  U.  S.  679  (1877); 
New  Orleans  v.  Houston,  119  U.  a  265  (1886). 

8  Infra  §  53. 

9  Salem  Iron  Factory  v.  Danvers,  10  Mass.  514  (1813). 

1  Adams  Express  Co.  v.  Ohio  State  Auditor.  166  U.  S.  185,  219  (1897). 

2  Rogers  v.  Hennepin  County,  240  U.  S.  184,  189  (1916). 


58  Taxation    in   Massachusetts  [part  i 

the  whole  claim  is  disputed;3  if,  however,  the  debtor  concedes 
that  he  owes  part  of  the  sum  claimed,  the  claim  is  taxable  to 
the  extent  that  it  is  conceded  to  be  due.4  Water  power  for  mill 
purposes. is  not  a  distinct  subject  of  taxation,  and  cannot  be 
taxed  independently  of  the  land  to  which  it  belongs.5 

35.  What  may  be  Subjected  to  an  Excise 

The  power  of  a  state  to  levy  an  excise  upon  privileges  enjoyed, 
occupations  carried  on  or  acts  performed  within  its  jurisdiction 
is  without  limit  except  so  far  as  limits  are  imposed  by  the  consti- 
tution of  the  state  or  of  the  United  States.  There  is  no  funda- 
mental requirement  that  only  those  privileges,  occupations  or 
acts  can  be  taxed  which  the  legislature  of  the  state  may  consti- 
tutionally regulate  or  prohibit;1  and  conversely  the  sovereign 
power  of  taxation  of  a  state  extends  to  privileges  which  it  has 
not  granted  and  to  acts  which  it  has  not  authorized.2 

A  state  may  at  the  same  time  tax  and  prohibit  the  perform- 
ance of  an  act.  There  is  nothing  unconstitutional  in  the  taxation 
of  an  act  which  is  prohibited  by  law,  and  in  such  case  the  pay- 
ment of  the  tax  is  no  justification  for  the  performance  of  the  act.3 

36.  Procedural  Rights  —  Assessment  and  Valuation 

The  Fourteenth  Amendment  not  only  protects  every  person 
within  the  jurisdiction  of  a  state  from  the  enforcement  of  the 
tax  laws  of  a  state  in  such  a  manner  as  to  deny  him  the  equal 
protection  of  the  law  by  means  of  arbitrary  discrimination  against 
his  property,  but  also  makes  it  necessary  that  the  state  provide 
an  orderly  procedure  in  the  levy  of  taxes  by  which  the  taxpayer 
may  have  a  reasonable  opportunity  to  protect  whatever  substan- 
tive rights  the  constitution  affords  him  before  the  tax  is  conclu- 
sively established  against  him. 

In  the  case  of  a  tax  on  property  levied  in  proportion  to  its 
value  there  must  be  a  formal  act  of  assessment,  consisting  of 
a  description  of  the  property  to  be  assessed,  its  inclusion  in  the 

3  Lowell  v.  Street  Commissioners  of  Boston,  106  Mass.  540  (1871);  Powers 
v.  Worcester,  210  Mass.  471  (1912). 

4  Deane  v.  Hathaway,  136  Mass.  129  (1883). 

5  Infra  page  191. 

1  See  however  the  rule  under  the  Massachusetts  Constitution  infra  §  55. 

2  Flint  v.  Stone  Tracy  Co.,  220  U.  S.  107.  158  (1911). 

3  Hodge  v.  Muscatine  County,  196  U.  S.  276  (1905). 


sect.  36]  Due   Process   of   Law  59 

tax  list  and  the  determination  of  its  value,  and  the  assessment 
must  be  made  a  matter  of  record,  so  that  the  owner  of  the 
property  may  have  means  of  ascertaining  definitely  the  fact  that 
it  has  been  assessed  and  the  amount  of  the  assessment.1  The 
assessment  may  be  upon  the  property  itself  instead  of  the  owner,2 
so  that  the  owner  is  not  deprived  of  any  constitutional  right 
if  he  is  not  correctly  named  or  not  named  at  all  in  the  assess- 
ment.3 An  owner  of  property  has  no  constitutional  right  to 
insist  that  all  the  statutory  requirements  of  assessment  are  com- 
plied with  and  a  statute  is  not  unconstitutional  which  provides 
that  no  error  or  omission  in  the  assessment  proceedings  shall 
invalidate  the  tax  unless  it  appears  that  the  person  assessed  has 
been  prejudiced  and  that  his  taxes  have  thereby  been  unfairly 
or  unequally  assessed.4 

In  the  case  of  an  excise  no  formal  act  of  assessment  is  nec- 
essary unless  the  amount  of  the  excise  depends  upon  the  value 
of  the  property  used  in  connection  with  the  act  which  is  taxed; 
and  the  legislature  may  levy  a  direct  tax  on  property  which 
has  a  value  definitely  ascertainable  by  computation  or  the  exam- 
ination of  records  without  any  formal  valuation  by  assessors 
or  other  administrative  officers.5  When  property  has  no  defi- 
nitely, ascertainable  value,  its  valuation  is  a  quasi  judicial  act; 
but  statutes  have  been  held  constitutional  which  establish  a 
minimum  figure  for  the  valuation  of  land;6  and  a  formula  for 

1  Illinois  Central  R.  R.  Co.  v.  Kentucky,  218  U.  S.  551  (1910).  The  assess- 
ment may  however  be  entered  on  the  back  of  the  envelope  in  which  the  papers 
concerning  the  assessment  are  filed,  instead  of  in  a  book,  if  the  envelope  is  a 
public  record.  Illinois  Central  R.  R.  Co.  v.  Kentucky,  218  U.  S.  551  (1910). 
An  owner  is  not  deprived  of  his  constitutional  rights  if  his  land  is  assessed 
by  a  description  which  is  not  technically  correct,  if  it  is  sufficient  to  apprise 
the  owner  that  the  land  assessed  is  his.  Ontario  Land  Co.  v.  Yordy,  212  U.  S. 
152  (1909). 

2  Witherspoon  v.  Duncan,  4  Wall.  210  (1866);  Castillo  v.  McConnico, 
168  U.  S.  674  (1898);  Ballard  v.  Hunter,  204  U.  S.  241  (1907);  Ontario  Land  Co. 
v.  Yordy,  212  U.  S.  152  (1909). 

3  Castillo  v.  McConnico,  168  U.  S.  674  (1898) ;  Ontario  Land  Co.  v.  Yordy, 
212  U.  S.  152  (1909). 

4  Winona  etc.  Land  Co.  v.  Minnesota,  159  U.  S.  526  (1895). 

5  Thus  no  formal  valuation  is  required  in  the  case  of  a  tax  on  the  interest 
of  obligations,  King  v.  United  States,  99  U.  S.  229  (1878) ;  United  States  v.  Erie 
R.  R.  Co.,  107  U.  S.  1  (1882),  or  on  the  undistributed  earnings  of  corporations 
Dollar  Savings  Bank  v.  United  States,  19  Wall.  227  (1873);  United  States 
v.  Philadelphia  etc.  R.  R.  Co.,  123  U.  S.  113  (1887),  or  on  bonds  of  cor- 
porations when  taxable  at  par,  Bell's  Gap  R.  R.  Co.  v.  Pennsylvania,  134 
U.  S.  232  (1890);  Jennings  v.  Coal  Ridge  Imp.  etc.  Co.,  147  U.  S.'  147  (1893). 


60  Taxation   in   Massachusetts  [paht  i 

determining  the  value  of  a  certain  class  of  property  may  if 
reasonable  be  established  by  statute,  such  as  deducting  the  value 
of  the  tangible  property  of  a  corporation  from  the  aggregate 
market  value  of  its  capital  stock  to  determine  the  value  of  its 
intangible  property.7 


37.   Procedural  Rights  —  Notice  and  a  Hearing 

It  is  a  fundamental  principle  of  the  law  of  taxation  that 
before  the  validity  and  amount  of  a  tax  are  finally  and  conclu- 
sively established  against  the  person  assessed  he  must  be  given 
an  opportunity  to  be  heard  in  opposition  to  the  tax,  and  as  a 
necessary  corollary  must  be  given  notice  of  the  assessment  so 
that  he  may  be  able  to  seasonably  claim  his  right  to  a  hearing.1 
A  statute  will  be  construed  as  requiring  notice  and  a  hearing  if 
such  construction  is  reasonably  possible;2  but  if  a  statute  makes 
no  provision  whatever  for  notice  it  is  unconstitutional  even  if 
notice  of  the  assessment  proposed  to  be  made  under  the  statute 
has  actually  been  given.3 

What  constitutes  sufficient  notice  to  satisfy  the  constitution 
depends  to  a  great  extent  upon  the  character  of  the  tax.  In  the 
case  of  the  annual  property  tax,  the  statute  itself  which  provides 
for  the  time  and  manner  of  the  levy  is  sufficient,  and  if  such 

6  Copper  Queen  Consolidated  Mining  Co.  v.  Arizona,  206  U.  S.  474  (1907). 

7  Adams  Express  Co.  v.  Ohio  State  Auditor,  165  U.  S.  194  (1897);  American 
Express  Co.  v.  Indiana,  165  U.  S.  255  (1897). 

1  Davidson  v.  New  Orleans,  96  U.  S.  97  (1877);  Santa  Clara  County  v. 
Southern  Pacific  R.  R.  Co.,  118  U.  S.  394  (1868);  Pittsburgh  etc.  R.  R.  Co.  v. 
Backus,  154  U  S.346  (1894);  Fallbrook  Irrigation  District  v.  Bradley,  164  U.  S. 
112  (1896);  Security  Trust  etc.  Co.  v.  Lexington,  203  U.  S.  323  (1906);  Central 
of  Georgia  R.  R.  Co.  v.  Wright.  207  U.  S.  127  (1907) ;  Londoner  v.  Denver, 
210  U.  S.  373  (1908);  Turner  v.  Wade,  254  U.  S.  64  (1920).  A  taxpayer  is  not 
entitled  to  a  hearing  at  every  step  in  the  proceedings;  one  hearing  before  the 
tax  is  finally  established  is  sufficient,  Weyerhauser  v.  Minnesota,  176  U.  S. 
550  (1900).  A  taxpayer  has  no  right  to  notice  of  the  legislative  action  by 
which  it  is  determined  that  a  tax  shall  be  assessed,  and  the  form  of  taxation, 
the  area  to  be  included  in  the  assessment,  the  sum  to  be  raised,  the  rate  of 
the  tax  and  the  method  of  apportionment  decided  upon;  Spencer  v.  Merchant, 
125  U.  S.  345  (1888);  Parsons  v.  District  of  Columbia,  170  U.  S.  45  (1898); 
Williams  v.  Eggleston,  170  U.  S.  304  (1898). 

2  Kentucky  Railroad  Tax  Cases,  115  U.  S.  321  (1885). 

»  Security  Trust  etc.  Co.  v.  Lexington,  203  U.  S.  323  (1906).  A  taxpayer 
who  was  duly  notified  in  accordance  with  the  requirements  of  the  statute  can- 
not be  heard  to  complain  because  no  provision  was  made  for  notifying  others 
dissimilarly  situated.     Gallup  v.  Schmidt,  183  U.  S.  300   (1902). 


sect.  b7j  Due   Process   of   Law  61 

statute  makes  adequate  provision  for  a  hearing  it  will  be  consti- 
tutional.4 In  the  case  of  special  assessments,  or  of  taxes  levied 
under  a  special  statute,  a  more  particular  notice  is  required; 
but  personal  notice  on  all  owners  is  impracticable,  and  personal 
service  on  all  owners  known  and  in  reach  of  process  and  notice 
by  publication  to  all  others  is  clearly  sufficient.5  In  fact  notice 
of  an  assessment  given  entirely  by  publication  and  posting  in 
some  public  place  has  been  held  sufficient.6  When  a  corporation 
is  made  agent  to  collect  and  pay  over  a  tax  on  its  shareholders, 
notice  of  the  assessment  may  be  given  to  the  corporation.7 

The  right  to  notice  and  a  hearing  extends  only  to  such  taxes 
as  involve  the  exercise  of  a  quasi  judicial  power  in  the  determir 
nation  of  the  amount,8  such  as  a  general  property  tax  dependent 
upon  valuation,9  or  an  excise  the  amount  of  which  is  dependent 
upon  the  valuation  of  the  property  in  connection  with  the  use 
of  which  the  excise  is  imposed.10  In  the  case  of  an  excise  not 
dependent  upon  the  valuation  of  property  and  in  respect  to 
which  there  is  no  exercise  of  judgment  as  to  the  amount,11  and 
in  the  case  of  poll  taxes  and  other  taxes  of  fixed  amounts,12  there 
is  no  occasion  for  notice  and  a  hearing,  although  if  no  opportu- 
nity for  a  hearing  is  afforded,  the  person  assessed  may  contest 
his  liability  to  the  tax  in  proceedings  for  its  enforcement. 

The  right  to  a  hearing  necessarily  denotes  an  opportunity 
to  offer  evidence  and  to  present  arguments  and  is  not  satisfied 

4  Hagar  v.  Reclamation  District  No.  108,  111  U.  S.  701  (1884);  Kentucky 
Railroad  Tax  Cases,  115  U.  S.  331  (1888) ;  Pittsburgh  etc.  R.  R.  Co.  v.  Backus, 
154  U.  S.  346  (1894) ;  Merchant's  etc.  Bank  v.  Pennsylvania,  167  U.  S.  461  (1897) ; 
Lander  v.  Mercantile  National  Bank,  186  U.  S.  458  (1902);  Michigan  Central 
R.  R.  Co.  v.  Powers,  201  U.  S.  245  (1906).  The  statute  is  not  sufficient  notice  of 
an  omitted  assessment  actually  made  in  a  subsequent  year,  Security  Trust  etc. 
Co.  v.  Lexington,  203  U.  S.  323  (1906). 

5  Davidson  v.  New  Orleans,  96  U.  S.  97  (1877). 

6  Castillo  v.  McConnico,  168  U.  S.  674  (1898);  Leigh  v.  Green,  193  U.  S. 
79  (1904);  Ballard  v.  Hunter,  204  U.  S.  241  (1907);  Hunter  v.  Johnson,  209 
U.  S.  541  (1908). 

7  Corry  v.  Baltimore,  196  U.  S.  466,  478  (1905). 

8  Carson  v.  Brockton  Sewerage  Commissioners,  182  U.  S.  398  (1901);  sus- 
taining 175  Mass.  242  (1900). 

9  Londoner  v.  Denver,  210  U.  S.  373  (1908). 

io  Auffmordt  v.  Hedden,  137  U.  S.  310  (1890);  Passavant  v.  United  States, 
148  U.  S.  214  (1893);  Origet  v.  Hedden,  155  U.  S.  228  (1894). 

11  McMillen  v.  Anderson,  95  U.  S.  37  (1877) ;  Hagar  v.  Reclamation  District 
No.  108,  111  U.  S.  701  (1884) ;  Lent  v.  Tillson,  140  U.  S.  316  (1891) ;  Hodge  v. 
Muscatine  County,  196  U.  S.  276  (1905). 

■  12  Hagar  v.  Reclamation  District  No.  108,  111  U.  S.  701  (1884);  Bell's 
Gap  R.  R.  Co.  v.  Pennsylvania,  134  U.  S.  232  (1890);  Lent  v.  Tillson*,  140 
U.  S.  316  (1891). 


62  Taxation    in   Massachusetts  [part  i 

by  an  opportunity  to  file  written  objections.13  Although  it  is 
customary  to  allow  the  taxpayer  an  opportunity  to  apply  to 
the  board  which  levied  the  assessment  for  an  abatement  thereof, 
or  to  allow  an  appeal  to  some  higher  administrative  tribunal, 
there  is  no  constitutional  right  to  a  hearing  before  any  admin- 
istrative board.  The  right  to  contest  the  validity  and  amount 
of  a  tax  in  the  ordinary  civil  courts  is  sufficient  to  satisfy  the 
constitution,14  and  this  right  may  be  in  the  form  of  a  statutory 
petition  to  the  court  in  which  the  validity  and  amount  of  the 
tax  are  in  issue,15  or  a  right  recognized  in  the  judicial  practice 
of  the  state  to  maintain  a  bill  in  equity  to  enjoin  the  collection 
.of  a  tax  alleged  to  be  illegal  or  excessive.16  So  also  when  the 
statutes  of  a  state  provide  as  the  only  means  of  enforcing  pay- 
ment of  a  tax  a  judicial  proceeding  in  which  an  opportunity  is 
afforded  for  a  full  hearing  in  which  the  validity  and  amount  of 
the  tax  can  be  contested,  and  only  after  there  is  a  judgment 
sustaining  the  tax  is  payment  enforced,  the  requirements  of  due 
process  of  law  are  satisfied.17 

There  is  however  no  constitutional  right  to  a  hearing  in  the 
ordinary  civil  courts  as  to  the  validity  and  amount  of  a  tax.  A 
statute  which  provides  an  opportunity  for  a  hearing  before  an 
impartial  administrative  tribunal  upon  application  for  abate- 
ment or  review  may  authorize  the  collection  of  the  tax  by  sum- 
mary proceedings  such  as  the  sale  of  real  estate,  distress  of  goods, 
or  arrest  of  the  person  without  affording  the  taxpayer  any  oppor- 
tunity to  be  heard  in  court,  in  proceedings  either  to  enforce  or 
to  resist  the  payment  of  the  tax.18  Due  process  in  matters  of 
taxation  does  not  necessarily  mean  a  judicial  proceeding.19    It 

13  Londoner  v.  Denver,  210  U.  S.  373   (1908). 

14  Davidson  v.  New  Orleans,  96  U.  S.  97  (1877). 

15  Watson  v.  Nevin,  128  U.  S.  578  (1888);  Pittsburgh  etc.  R.  R.  Co.  v. 
Board  of  Public  Works,  172  U.  S.  32  (1898). 

16  Security  Trust  etc.  Co.  v.  Lexington,  203  U.  S.  323   (1906). 

17  Hagar  v.  Reclamation  District  No.  108,  111  U.  S.  701  (1884) ;  Kentucky 
Railroad  Tax  Cases,  115  U.  S.  321  (1885);  Winona  etc.  Land  Co.  v.  Minnesota, 
159  U.  S.  526  (1895);  Weyerhaueser  v.  Minnesota,  176  U.  S.  550  (1900); 
Clement  National  Bank  v.  Vermont  231  U.  S.  120  (1913);  Wells,  Fargo  &  Co. 
v.  Nevada,  248  U.  S.  165  (1918). 

18  Palmer  v.  McMahon,  133  U.  S.  660.  669  (1890) ;  Harrington  v.  Glidden, 
189  U.  S.  255  (1903) ;  Hibben  v.  Smith,  191  U.  S.  310  (1903) ;  Hodge  v.  Musca- 
tine County,  196  U.  S.  276  (1905);  Michigan  Central  R.  R.  Co.  v.  Powers, 
201  U.  S.  245  (1906).  WThen  the  only  hearing  provided  is  before  a  board  of 
arbitrators,  and  no  provision  is  made  for  further  proceedings  if  the  arbitrators 
disagree,  the  remedy  is  nugatory,  and  the  statute  is  unconstitutional.  Turner 
v.  Wade,  254  U.  S.  64  (1920). 

">  McMillen  v.  Anderson,  95  U.  S.  37,  41   (1877). 


sect.  38]  Due   Process   of   Law  63 

is  not  even  necessary  that  the  taxpayer  be  given  an  opportunity 
to  be  heard  upon  an  application  for  abatement  or  review,  if  he 
has  a  right  to  a  hearing  before  the  assessors  at  the  time  the 
assessment  is  being  made.20 


38.  Procedural  Rights  —  Lists  and  Returns 

A  taxpayer  may  be  required  to  assist  in  the  assessment  of 
his  own  tax  by  filing  a  sworn  list  or  return  of  his  taxable  property 
or  income,  and  may  be  subjected  to  a  fine  or  other  penalty  if  he 
fails  to  comply  with  this  requirement  or  if  he  knowingly  files 
a  false  list  or  return;  but  if  the  law  makes  the  filing  of  a  false 
list  a  criminal  offense,  a  person  who  has  filed  a  list  cannot  be 
compelled  to  submit  his  books  and  papers  to  the  inspection  of 
the  taxing  officials  as  he  would  thereby  be  compelled  to  become 
a  witness  against  himself  in  violation  of  the  Fifth  Amendment 
to  the  federal  constitution.1 

It  has  often  been  provided  that  failure  of  a  person  liable 
to  taxation  to  bring  in  a  list  of  taxable  property  shall  subject  the 
delinquent  to  the  "doom"  of  the  assessors;  that  is  the  assessors 
may  lawfully  estimate  the  aggregate  value  of  the  property  of  a 
person  liable  to  taxation  who  has  filed  no  list,  according  to  their 
best  judgment  and  belief.  If  such  a  statute  goes  so  far  as  to 
make  such  an  assessment  final,  and  to  deny  the  taxpayer  all 
opportunity  to  demonstrate  that  the  tax  so  assessed  is  excessive, 
even  if  his  failure  to  file  a  list  was  due  to  a  belief  based  on 
reasonable  grounds  that  he  held  no  taxable  property,  it  is  uncon- 
stitutional;2 but  statutes  which  provide  that  one  who  without 
reasonable  excuse  fails  to  file  a  list  shall  be  subject  to  the  doom 
of  the  assessors  and  shall  have  no  redress  if  overassessed  are 

20  State  Railroad  Tax  Cases,  92  U.  S.  575  (1875);  Kentucky  Railroad  Tax 
Cases,  115  U.  S.  321  (1885);  Pittsburgh  etc.  R.  R.  Co.  v.  Backus,  154  U.  S. 
421  (1894);  Lander  v.  Mercantile  National  Bank,  186  U.  S.  458  (1902).  Con- 
versely the  taxpayer  need  not  be  given  an  opportunty  for  a  hearing  while  the 
assessment  is  being  made,  if  he  has  a  right  to  a  hearing  on  review,  McMillen  v. 
Anderson,  95  U.  S.  37  (1877).  When  a  state  board  of  equalization  orders  the 
raising  of  the  valuation  of  all  the  property  in  a  county  a  certain  fixed  propor- 
tion, there  is  no  right  to  a  hearing.  Bi-Metallic  Investment  Co.  v.  State  Board 
of  Equalization,  239  U.  S.  441   (1915). 

1  Boyd  v.  United  States,  116  U.  S.  616  (1886).  This  provision  is  applicable 
only  to  the  United  States,  but  there  is  a  similar  provision  in  the  Massachusetts 
Constitution.   Declaration   of  Rights.   Article   XII. 

2  Central  of  Georgia  R.  R.  Co.  v.  Wright,  207  U.  S.  127  (1907). 


64  Taxation    in   Massachusetts  [paet  i 

clearly  constitutional.3  It  has  even  been  held  that  a  statute 
providing  that  failure  to  enter  land  upon  the  tax  list  for  five 
successive  years  shall  result  in  the  forfeiture  of  the  land  is  con- 
stitutional.4 

A  person  or  corporation  may  be  constitutionally  required  to 
assist  in  the  assessment  or  collection  of  taxes  of  others.  Thus 
a  tenant,  bailee  or  agent  in  possession  of  the  property  of  another 
may  be  compelled  to  pay  the  taxes  on  the  property.5  Other 
common  instances  are  the  statutes  requiring  employers  to  file 
lists  of  their  salaried  employees,  with  the  amounts  paid  to  each, 
and  statutes  which  require  corporations  to  deduct  from  interest 
on  their  bonds  or  dividends  on  their  stock  taxes  assessed  against 
the  bondholders  or  stockholders  and  to  pay  such  taxes  to  the 
state,6  or  which  make  the  corporation  agent  to  collect  taxes 
against  the  shareholders  on  shares  of  its  own  stock.7  It  would 
seem  however  that  there  must  be  some  limit  on  the  power  of 
a  state  to  require  an  individual  to  perform  work  of  this  character 
for  its  benefit  without  compensation. 

39.   Retroactive  and  Omitted  Assessments  — 
Re-assessments 

A  taxpayer  has  no  constitutional  right  to  immunity  from 
taxation  merely  because  he  owned  property,  received  income 
or  performed  acts  at  a  time  when  such  property,  income  or  acts 
were  not  subject  to  taxation.  There  is  no  analogy  between  the 
levy  of  a  tax  and  the  execution  of  a  contract,  and  a  tax  is  not 
invalid  because  the  consideration  is  past.  In  other  words  laws 
relating  to  the  assessment  of  taxes  may  have  a  retroactive  effect,1 

3  Harrington  v.  Glidden,  179  Mass.  486,  495  (1901),  affirmed  sub  nom. 
Glidden  v.  Harrington,  189  U.  S.  258  (1903);  Sears  v.  Assessors  of  Nahant,  208 
Mass.  208  (1911);  Sears  v.  Nahant,  221  Mass.  437  (1915),  affirmed  248  U.  S. 
542  (1918). 

4  King  v.  Mullins,  171  U.  S.  436  (1898);  Kentucky  Union  Co.  v.  Kentucky, 
219  U.  S.  140  (1911).  In  these  cases  the  forfeiture  was  enforced  by  judicial 
process  of  which  the  owner  had  notice  and  an  opportunity  was  given  him  to 
relieve  his  land  of  the  forfeiture  by  paying  the  delinquent  taxes.  It  is  open  to 
question  whether  forfeiture  could  be  enforced  without  judicial  process.  Bennett 
v.  Hunter,  9  Wall.  326  (1869);  Hatfield  v.  King,  184  U.  S.  162  (1902). 

5  Carstairs  v.  Cochran,  193  U.  S.  10  (1904) ;  Illinois  Central  R.  R.  Co.  v. 
Kentucky,  218  U.  S.  550  (1910). 

6  Bell's  Gap  R.  R  Co.  v.  Pennsylvania,  134  TJ.  S.  232  (1890);  Aberdeen 
etc.  Bank  v.  Chehalis  County,  166  TJ.  S.  440  (1897);  Brushaber  v.  Union 
Pacific  R.  R.  Co.,  240  U.  S.  1  (1916). 

7  Corry  v.  Baltimore,  196  TJ.  S.  466  (1905). 

1  Kentucky  Union  Co.  v.  Kentucky,  219  U.  S.  140  (1911). 


sect.  39]  Due   Process   of   Law  65 

and  there  is  nothing  in  the  constitution  of  the  United  States 
which  prohibits  a  state  from  enacting  a  law  by  which  property 
which  has  escaped  taxation  in  previous  years  is  assessed  for  such 
years.2  The  only  limit  upon  the  power  of  a  legislature  to  assess 
a  tax  in  praesenti  based  upon  a  state  of  things  existing  in  the 
past  is  that  the  measure  of  the  tax  must  not  be  so  remote  that 
it  is  no  indication  of  the  taxpayers'  present  ability  to  pay,  and 
there  must  be  no  interference  with  vested  rights.3 

The  assessment  of  taxes  of  former  years  upon  property  which 
was  subject  to  taxation  by  the  provisions  of  statute  during  such 
years  but  which  was  omitted  from  the  tax  list  by  an  oversight 
of  the  assessors  deprives  the  owner  of  such  property  of  no  consti- 
tutional right.4  The  completion  of  the  tax  list  for  a  given  year 
creates  no  vested  right  in  the  owners  of  property  subject  to  tax- 
ation that  the  assessment  shall  not  thereafter  be  modified  or 
amended  to  their  detriment.  It  can  make  no  difference  in  such 
a  case  that  property  has  been  sold  to  a  bona  fide  purchaser 
without  notice  and  that  the  tax  is  to  be  collected  by  enforcing 
a  lien  on  the  property.5  So  also  omitted  property  may  be  con- 
stitutionally assessed  after  the  owner  has  died.6  For  similar 
reasons  the  legislature  has  power  to  provide  for  the  revaluation 
and  reassessment  of  property  which  has  been  undervalued  in 
previous  years.7 

If  the  assessment  of  a  previous  year  was  defective  by  reason 
of  some  informality  or  irregularity  in  the  proceedings,  the  assess- 
ment may  be  validated  by  act  of  legislature,  provided  that  the 
requirement  of  statute  which  has  not  been  complied  with  was 
one  which  the  legislature  might  constitutionally  have  dispensed 
with,8  or,  if  it  is  essential  to  the  constitutionality  of  the  tax, 
the  legislature  provides  that  it  shall  now  be  complied  with.9 
So  also  the  legislature  may  provide  that  taxes  defectively  or 
illegally  assessed  shall  be  reassessed.10    Whatever  the'  legislature 

2  League  v.  Texas,  184  U.  S.  161  (1902). 

3  Kentucky  Union  Co.  v.  Kentucky,  219  U.  S.  140  (1911). 

4  Sturges  V.  Carter,  114  U.  S.  511  (1885) ;  Winona  etc.  Land  Co.  v.  Minne- 
sota, 159  U.  S.  526  (1895);  Florida  Central  etc.  R.  R.  Co.  v.  Reynolds,  183 
U.  S.  471   (1902);  Citizens  National  Bank  v.  Kentucky,  217  U.  S.  443   (1910). 

5  Citizens  National  Bank  v.  Kentucky,  217  U.  S.  443  (1910). 

6  Sturges  v.  Carter,  114  U.  S.  511  (1885). 

7  Weyerhaueser  v.  Minnesota,  176  U.  S.  550  (1900). 

8  Mattingly  v.  District  of  Columbia,  97  U.  S.  687  (1878). 

9  Williams  v.  Albany,  122  U.  S.  154  (1887). 

10  Spencer  v.  Merchant,  125  U.  S.  345  (1888) ;  Lombard  v.  West  Chicago 
Park  Commissioners,  181  U.  S.  33  (1901). 


66  Taxation   in   Massachusetts  [part  i 

could  authorize  as  an  original  assessment  it  may  authorize  not- 
withstanding a  previous  invalid  attempt  to  assess.11 

40.  Due  Process  of  Law  in  the  Collection  of  Taxes 

It  is  well  settled  that  due  process  of  law  in  the  collection 
of  taxes  is  not  necessarily  a  judicial  proceeding.  Probably  there 
are  few  governments  which  do  or  can  permit  their  claims  for 
public  taxes  to  become  subjects  of  judicial  controversy,  according 
to  the  course  of  the  law  of  the  land.  Imperative  necessity  has 
forced  a  distinction  between  such  claims  and  all  others,  and  they 
have  sometimes  been  enforced  by  summary  methods  of  pro- 
ceeding, and  sometimes  by  systems  of  fines  and  penalties,  but 
always  in  some  way  observed  and  yielded  to.1 

Collection  of  taxes  by  distress,  or  the  seizure  and  sale  of  per- 
sonal property  of  the  delinquent  without  judicial  process,  was 
a  remedy  in  common  use  in  this  country  when  the  constitution 
was  adopted,  and  unquestionably  constitutes  due  process  of  law.2 
So  also  the  arrest  and  commitment  of  the  person  assessed  when 
he  fails  to  pay  the  tax  or  to  exhibit  goods  for  the  officer  to  dis- 
train is  a  long-established  and  clearly  constitutional  method  of 
collection.3  It  is  equally  within  the  power  of  the  legislature  to 
provide  that  a  person  shall  not  exercise  his  right  of  voting  while 
his  taxes  are  in  default.4  The  payment  of  taxes  may  be  expe- 
dited by  the  imposition  of  interest  from  the  time  they  became 
delinquent  and  the  costs  of  collection  may  be  added  to  the 
amount  of  the  tax.5  A  statute  providing  for  the  imposition 
of  a  penalty,  even  as  great  as  one  half  of  the  tax,  if  it  remains 
unpaid  after  a  certain  date,  is  not  unconstitutional.6 

11  Wagner  v.  Leser,  239  U.  S.  207  (1915). 

1  Murray's  Lessee  v.  Hoboken  Land  etc.  Co.,  18  How.  272,  282  (1855).  A 
state  has  at  common  law  a  priority  in  its  claims  for  taxes,  Marshall  v.  New 
York,  254  U.  S.  380  (1920). 

2  Murray's  Lessee  v.  Hoboken  Land  etc.  Co.,  18  How.  272,  282  (1855); 
Springer  v.  United  States,  102  U.  S.  586  (1880);  Kelly  v.  Pittsburgh,  104  U.  S. 
78  (1881);  Palmer  v.  McMahon,  133  U.  S.  660  (1890);  King  v.  Mullins,  171 
U.  S.  404  (1897).  An  automobile  used  in  an  attempt  to  transport  liquor  so  as 
to  evade  a  tax  may  be  seized  and  forfeited,  although  the  automobile  was  in  the 
hands  of  a  bailee  and  the  owner  was  unaware  of  its  unlawful  use.  Goldsmith- 
Grant  Co.  v.  United  States,  254  U.  S.  505  (1921). 

3  Palmer  v.  McMahon,  133  U.  S.  660  (1897). 

4  Walker  v.  Whitehead,  16  Wall.  314   (1872). 

5  League  v.  Texas,  184  U.  S.  156  (1901). 

6  Western  Union  Tel.  Co.  v.  Indiana,  165  U.  S.  304  (1896).    But  a  state 


sect.  40]  Due   Process   of   Law  67 

A  tax  on  personal  property  is  usually  not  a  lien  thereon;7 
but  it  is  clearly  within  the  power  of  the  legislature  to  make  the 
taxes  on  personal  property  of  a  taxpayer  a  lien  on  every  article 
of  his  personal  property  taking  precedence  of  prior  mortgages 
and  liens  created  by  private  contract.8  So  also  the  practice  is 
almost  universal  to  make  the  taxes  on  real  estate  a  lien  thereon, 
although  in  the  case  of  real  estate  the  lien  on  each  parcel  of  real 
estate  does  not  usually  include  the  taxes  on  other  real  estate  of 
the  same  owner.  It  is  held  in  most  jurisdictions  that  the  title 
created  by  a  sale  for  non-payment  of  taxes  is  not  merely  the 
title  of  the  person  assessed,  but  is  a  new  and  paramount  title 
created  by  the  sovereign  and  is  free  from  all  pre-existing  equi- 
ties and  incumbrances.9  A  tax  sale  thus  extinguishes  all  mort- 
gages and  other  rights  in  the  property  sold.10  Nevertheless  it 
is  well  settled  that  the  exercise  of  the  power  of  sale  is  not  a 
violation  of  the  constitutional  rights  of  the  holder  of  an  interest 
in  or  lien  on  the  property  sold,  although  he  is  under  no  obligation 
to  pay  the  tax  and  may  lose  valuable  property  rights  through 
the  delinquency  of  another.11 

The  collection  of  excises  is  commonly  enforced  by  prohibiting 
the  performance  of  the  act  which  is  the  subject  of  the  excise 
unless  the  tax  is  paid.  This  prohibition  may  be  and  frequently 
is  enforced  by  the  issuance  of  an  injunction  against  the  delin- 
quent, restraining  him  from  further  performance  of  the  act  until 
payment  of  the  tax,  with  penalties  and  costs.12    There  is  how- 


cannot  impose  a  penalty  when  it  has  claimed  title  to  the  property  assessed 
and  not  undertaken  to  collect  the  tax  until  its  claim  of  title  was  decided 
against  it.    Litchfield  v.  Webster  County,  101  U.  S.  773  (1879). 

7  Heine  v.  Levee  Commissioners,  19  Wall.  655  (1873);  Richmond  v.  Bird, 
249  U.  S.  174  (1918). 

s  Central  Trust  Co.  v.  Minnesota,  174  U.  S.  803  (1899). 

9  Turner  v.  Smith,  14  Wall.  553  (1871);  Osterberg  v.  Union  Trust  Co.,  93 
U.  S.  424  (1876);  Hefner  v.  Northwestern  Mutual  Life  Insurance  Co.,  123  U.  S. 
747  (1887);  Leigh  v.  Green,  193  U.  S.  79  (1904);  Langley  v.  Chapin,  134  Mass. 
82  (1883);  Hunt  v.  Boston,  183  Mass.  303  (1903);  Weeks  v.  Grace,  194  Mass. 
296  (1907). 

10  Osterberg  v.  Union  Trust  Co.,  93  U.  S.  424  (1876);  Hefner  v.  North- 
western Mutual  Life  Insurance  Co.,  123  U.  S.  747  (1887).  See  also  infra 
page  350.  When  the  fee  is  not  subject  to  taxation  the  lien  is  only  upon  the 
interest  in  the  property  that  is  taxable.  Baltimore  Shipbuilding  etc.  Co.  v. 
Baltimore,  195  U.  S.  375  (1904);  Jeton  v.  University  of  the  South,  208  U.  S. 
489  (1908). 

11  Provident  Institution  v.  Jersey  City,  113  U.  S.  506;  Leigh  v.  Green,  193 
U.  S.  79  (1904). 

12  New  Jersey  v.  Anderson,  203  U.  S.  483  (1906). 


68  Taxation    in    Massachusetts  [part  i 

ever  no  constitutional  objection  to  the  collection  of  an  excise 
by  the  enforcement  of  a  lien  upon  the  property  used  or  en- 
joyed in  connection  with  the  act,  privilege  or  occupation 
assessed,13  even  if  it  is  not  owned  by  the  person  liable  for  the 
tax.14 

The  Fourteenth  Amendment  and  the  corresponding  pro- 
vision of  the  state  constitution  undoubtedly  prohibit  arbi- 
trary and  unreasonable  discriminations  in  the  manner  of 
collecting  taxes  between  persons  and  things  similarly  situated; 
but  there  is  no  requirement  of  uniformity  among  different 
classes  when  there  is  a  reasonable  ground  for  distinction.  Thus 
a  statute  giving  greater  rights  of  redemption  from  sales  for 
nonpayment  of  taxes  to  mortgagees  of  record  than  to  those 
who  hold  unrecorded  mortgages  is  not  unconstitutional.15 

41.   Retroactive  Provisions  Respecting  Collection  of  Taxes 

It  is  stated  as  a  general  rule  that,  as  far  as  the  federal  con- 
stitution is  concerned,  the  legislature  may  change  the  mode 
of  collecting  taxes  which  have  already  been  assessed  at  any 
time  before  they  have  been  paid  or  otherwise  discharged  or 
released.1  Even  when  a  bona  fide  purchaser  for  value  has  ac- 
quired land  with  respect  to  which  taxes  are  delinquent  he  cannot 
complain  if  the  laws  are  changed  to  his  detriment  with  respect 
to  the  collection  of  taxes.2 

On  the  other  hand  vested  rights  cannot  be  impaired  under 
the  guise  of  a  change  in  the  remedy.  A  statute  attempting  to 
validate  a  void  tax  sale  is  unconstitutional.3  A  statute  modi- 
fying the  law  with  respect  to  the  redemption  of  land  from  sale 
for  non-payment  of  taxes  cannot  be  constitutionally  applied  to 
sales  already  made.4 

13  McMillen  v.  Anderson,  95  U.  S.  37  (1877);  Hodge  v.  Muscatine  County, 
196  U.  S.  276  (1905);  Scottish  Union  etc.  Insurance  Co.  v.  Bowland,  196  U.  S. 
611  (1905). 

14  Hodge  v.  Muscatine  County,  196  U.  S.  276  (1905). 

15  Barry  v.  Lancy,  179  Mass.  112  (1901).  So  also  penalties  may  be  imposed, 
applicable  only  to  certain  classes  of  corporations,  upon  their  failure  to  pay 
taxes  when  due.     Western  Union  Tel.  Co.  v.  Indiana,  165  U.  S.  304  (1897). 

1  League  v.  Texas,  184  U.  S.  156  (1902);  Kentucky  Union  Co.  v.  Kentucky, 
219  U.  S.  140  (1911).  A  statute  relating  to  redemption  from  sale  for  non- 
payment of  taxes  may  constitutionally  apply  to  taxes- already  assessed.  Rogers 
v.  Nicholls,  186  Mass.  440  (1904). 

2  Citizens  National  Bank  v.  Kentucky,  217  U.  S.  443  (1910);  Kentucky 
Union  Co.  v.  Kentucky,  219  U.  S.  140  (19li). 

3  Forster  v.  Forster,   129   Mass.  559    (1880). 

4  Solis  v.  Williams,  205  Mass.  350  (1910). 


sect.  42]  Territorial   Jurisdiction  69 

Although  a  state  cannot  enact  a  law  impairing  the  obliga- 
tion of  contracts,  a  statute  applicable  to  the  collection  of  taxes 
thereafter  assessed  which  affects  contracts  entered  into  before 
its  enactment  is  clearly  constitutional,  for  the  sovereign  power 
to  enact  legislation  cannot  be  affected  or  diminished  by  the 
contracts  of  private  parties.5  When  the  only  parties  who  can 
be  unfavorably  affected  by  a  change  in  the  tax  laws  are  munic- 
ipal corporations,  a  statute  making  such  a  change  is  not  uncon- 
stitutional even  if  it  impairs  vested  rights.6 


TERRITORIAL    JURISDICTION 

42.   The  Situs  of  Property  for  the  Purpose  of  Taxation 

It  is  well  settled  that  no  state  can  tax  property  that  is  not 
within  its  jurisdiction.  It  is  an  implied  condition  of  all  statutes 
relating  to  taxation  that  they  have  no  extra-territorial  effect. 
They  can  apply  in  the  nature  of  things  only  to  property  within 
the  jurisdiction  of  the  sovereign  state  enacting  the  legislation, 
either  actually  through  physical  location  or  constructively 
through  control  over  the  person  of  one  essentially  connected 
therewith.1  This  rule  as  a  moral  obligation  is  inherent  to  the 
very  existence  of  a  constitutional  government 2  and  it  is  estab- 
lished by  the  Fourteenth  Amendment  to  the  constitution  of 
the  United  States  as  a  practical  restriction  enforced  by  the  fed- 
eral courts.  An  attempt  by  a  state  to  require  property  not 
within  its  jurisdiction  to  contribute  to  the  support  of  the  gov- 
ernment thereof  would  not  be  taxation  but  mere  arbitrary 
spoliation ;  and  it  would  deprive  the  owner  of  his  property  with- 
out the  essential  "due  process  of  law."  3     It  is  not  however 

5  Andrews  v.  Worcester  etc.  Insurance  Co.,  5  Allen  65   (1862). 

6  Thus  a  statute  allowing  interest  and  costs  in  abatement  proceedings  suc- 
cessfully maintained  may  be  applied  to  pending  cases.  Tremont  &  Suffolk 
Mills  v.  Lowell,  165  Mass.  265  (1896). 

1  Walker  v.  Treasurer  &  Receiver  General,  221  Mass.  600  (1915). 

2  McCulloch  v.  Maryland,  4  Wheat.  316,  429  (1819). 

3  State  Tax  on  Foreign  Held  Bonds,  15  Wall.  300  (1872) ;  Louisville,  etc. 
Ferry  Co.  v.  Kentucky,  188  U.  S.  385  (1903);  Delaware  etc.  R.  R.  Co.  v. 
Pennsylvania,  198  U.  S.  341  (1905) ;  Old  Dominion  Steamship  Co.  v.  Virginia, 
198  U.  S.  299  (1905) ;  Union  Refrigerator  Transit  Co.  v.  Kentucky.  199  U.  S. 
194  (1905);  Metropolitan  Life  Insurance  Co.  v.  New  Orleans,  205  U.  S.  395 
(1907);  Provident,  etc.  Society  v.  Kentucky,  239  U.  S.  103  (1915). 


70  Taxation    in   Massachusetts  [part  i 

always  easy  to  determine  the  situs  of  property  so  as  to  fix  the 
jurisdiction  for  the  purpose  of  taxation. 

Real  property  is  of  course  taxed  only  in  the  state  in  which 
it  is  situated.4  If  land  in  one  state  is  subject  to  an  easement 
in  favor  of  land  in  another  state,  it  is  nevertheless  taxable  at 
its  full  value  in  the  state  in  which  it  is  situated,  and  the  ease- 
ment is  not  subject  to  taxation  in  the  state  in  which  the  domi- 
nant tenement  is  situated.5  If  land  in  one  state  has  an  addi- 
tional value  by  reason  of  its  capacity  for  use  in  developing  a 
water  power  for  a  mill  in  another  state,  it  may  be  taxed  upon 
such  value,  and  such  value  can  best  be  ascertained  by  finding 
the  entire  value  of  the  water  power  as  a  unit  and  then  deter- 
mining what  part  of  this  value  is  imputable  to  the  real  estate 
in  each  state.6  So  also  a  railroad,  telegraph  line  or  other  similar 
system  extending  through  two  or  more  states  may  be  valued 
as  a  unit,  and  the  proportion  of  the  total  value  which  the 
mileage  within  one  state  bears  to  the  total  mileage  may  be  used 
as  a  basis  of  taxation  within  that  state,7  unless  there  are  some 
peculiar  circumstances  which  render  such  a  method  so  unjust 
as  to  constitute  it  a  mere  subterfuge  for  taxing  property  outside 
the  state.8    In  determining  the  total  value  in  such  a  case  it  is 

4  Union  Refrigerator  Transit  Co.  v.  Kentucky,  199  U.  S.  194  (1905).  It 
is  interesting  to  note  that  the  commissioners  who  prepared  the  Revised 
Statutes  of  Massachusetts  (1836)  inserted  a  clause  taxing  the  real  estate  of 
residents  of  this  state  situated  outside  the  state.  This  clause  was  however  not 
enacted,  but  the  recommendation  of  the  commissioners  shows  how  little  the 
constitutional  limitations  upon  the  taxing  power  as  they  now  exist  were  then 
understood. 

5  Blackstone  Mfg.  Co.  v.  Blackstone,  200  Mass.  82  (1908). 

6  Blackstone  Mfg.  Co.  v.  Blackstone,  211  Mass.  14   (1912). 

7  Delaware  Railroad  Tax,  18  Wall.  206  (1873);  State  Railroad  Tax  Cases, 
92  U.  S.  575  (1875) ;  Western  Union  Tel.  Co.  v.  Attorney  General,  125  U.  S. 
530  (1887);  Pullman's  Palace  Car  Co.  v.  Pennsylvania,  141  U.  S.  26  (1891); 
Attorney  General  v.  Western  Union  Tel.  Co.,  141  U.  S.  40  (1891);  Maine  v. 
Grand  Trunk  Ry.  Co.,  142  U.  S.  227  (1891);  Columbus  Southern  R.  R.  Co.  v. 
Wright,  151  U.  S.  470  (1894) ;  Pittsburgh,  etc.,  R.  R.  Co.  v.  Backus,  154  U.  S. 
421  (1894);  Cleveland,  etc.,  R.  R.  Co.  v.  Backus,  154  U.  S.  443  (1894);  Western 
Union  Tel.  Co.  v.  Taggart,  163  U.  S.  27  (1896);  Western  Union  Telegraph  Co. 
v.  Missouri,  190  U.  S.  412  (1903) ;  Wisconsin,  etc.,  R.  R.  Co.  v.  Powers,  191  U.  S. 
379  (1903);  Michigan  Central  R.  R.  Co.  v.  Powers,  201  U.  S.  245  (1906); 
Chicago  etc.,  R.  R.  Co.  v.  Babcock,  204  U.  S.  585  (1907) ;  St.  Louis  etc.,  Ry. 
Co.  v.  Missouri,  U.  S.  (1921). 

8  Thus  if  a  railroad  company  has  very  valuable  terminals  but  a  short  line 
in  one  state  and  no  valuable  terminals  and  a  long  line  in  another  state,  the 
latter  state  could  not  tax  the  property  of  the  company  in  proportion  to  the 
mileage  within  its  limits.  Pittsburgh,  etc.,  R.  R.  Co.  v.  Backus,  154  U.  S.  421, 
431  (1894).  See  also  Western  Union  Tel.  Co.  v.  Taggart,  163  U.  S.  1  (1896); 
Union  Tank  Line  Co.  v.  Wright,  249  U.  S.  275  (1919) ;  Wallace  v.  Hines,  253 
U.  S.  66  (1920). 


sect.  43]  Territorial   Jurisdiction  71 

proper  to  include  the  value  of  the  franchise  of  the  company, 
and  a  reasonable  method  of  determining  the  total  value  of  the 
franchise  and  the  other  property  employed  in  the  system  consid- 
ered as  a  going  concern  is  to  take  the  total  value  of  the  capital 
stock,9  deducting  property  located  in  another  state  and  not  used 
in  the  business.10  An  express  company  doing  business  in  several 
states,  although  its  property  is  not  physically  bound  together 
like  a  railroad  or  telegraph  line,  may  be  taxed  in  accordance  with 
the  method  described  above.11 

43.   The  Situs  of  Tangible  Personal  Property 

The  situs  of  personal  property  was  formerly  governed  by  the 
maxim  mobilia  sequuntur  personam,  and  the  statutes  of  many 
of  the  states  provided  that  every  resident  of  the  state  should 
be  taxed  for  all  his  personal  property,  tangible  and  intangible, 
wherever  situated,1  although  the  propriety  of  taxing  tangible 
personal  property  in  the  state  in  which  it  is  permanently  lo- 
cated regardless  of  the  domicile  of  its  owner  has  long  been  rec- 
ognized.2 Thus  tangible  property  kept  by  its  owner  in  a  state 
other  than  that  in  which  he  dwelt  might  have  been  and  in 

9  Pullman's  Palace  Car  Co.  v.  Pennsylvania,  141  U.  S.  18  (1891);  Pitts- 
burgh etc.  R.  R.  Co.  v.  Backus,  154  U.  S.  421  (1894);  Western  Union  Tel.  Co. 
v  Taggart,  163  U.  S.  1  (1896) ;  Adams  Express  Co.  v.  Ohio  State  Auditor,  165 
U.  S.  221  (1897);  Chicago  etc.  R.  R.  Co.  v.  Babcock,  204  U.  S.  585  (1907). 

10  Fargo  v.  Hart,  193  U.  S.  490  (1904);  Wallace  v.  Hines,  253  U.  S.  66 
(1920).  In  taxing  a  proportionate  part  of  the  income  of  a  railroad  or  an  ex- 
press company,  income  from  investments  outside  the  state  cannot  be  included. 
Galveston,  etc.,  Railway  Co.  v.  Texas,  210  U.  S.  217  (1908);  Meyer  v.  Wells 
Fargo  &  Co.,  224  U.  S.  298  (1912). 

11  Adams  Express  Co.  Ohio  State  Auditor,  165  U.  S.  194,  221  (1897); 
166  U.  S.  185  (1897);  Adams  Express  Co.  v.  Kentucky,  166  U.  S.  171  (1897); 
Fargo  v.  Hart,  193  U.  S.  490  (1904);  Wells  Fargo  &  Co.  v.  Nevada,  248  U.  S. 
165  (1918). 

1  Until  1909  the  statutes  of  Massachusetts  required  in  terms  the  taxation 
of  all  personal  property  of  inhabitants  of  the  commonwealth  wherever  situated. 
St.  1909.  c.  490,  Part  I,  Sees.  2,  4,  cl.  1;  Bemis  v.  Aldermen  of  Boston,  14 
Allen  366  (1867);  Spinney  v.  Lynn,  172  Mass.  464  (1899);  but  by  St.  1909  c. 
516,  Sec.  1,  it  was  provided  that  merchandise,  machinery  and  animals  owned 
by  inhabitants  of  the  commonwealth  but  situated  in  another  state  should  be 
exempted  from  taxation  here. 

2  Leonard  v.  New  Bedford,  16  Grav  292  (1860) ;  Old  Dominion  Steamship 
Co.  v.  Virginia,  198  U.  S.  299  (1905);' Buck  v.  Beach,  206  U.  S.  392  (1908). 
When  personal  property  of  a  foreign  corporation  or  a  non-resident  is  per- 
manently located  within  the  state,  the  tax  on  the  property  can  be  constitu- 
tionally assessed  to  the  owner  and  not  merely  against  the  particular  articles 
of  personal  property  upon  which  it  is  based.  Scollard  v.  American  Felt  Co., 
194  Mass.  127  (1907). 


72  Taxation    in    Massachusetts  [part  i 

some  instances  doubtless  actually  was  subjected  to  double  tax- 
ation. A  few  years  ago  however  the  supreme  court  of  the 
United  States  held  that  a  state  has  no  power  to  tax  tangible 
personal  property  permanently  located  outside  the  limits  of 
the  state  although  owned  by  one  of  its  own  citizens  or  by  a 
domestic  corporation.3  A  state  does  not  however  lose  the  power 
to  tax  the  tangible  personal  property  of  a  resident  or  of  a  do- 
mestic corporation  to  its  full  value  by  reason  of  the  fact  that  it 
is  frequently  taken  into  other  states.4  Thus  vessels  plying  be- 
tween different  ports  and  having  no  permanent  location  in  any 
one  of  them  are  taxable  at  the  domicile  of  the  owner  although 
they  have  never  been  within  the  state  in  which  he  dwells.5  In 
other  words  the  rule  mobilia  sequuntur  personam  is  still  in 
force  as  the  prima  facie  test  of  the  situs  of  tangible  personal 
property  and  prevails  unless  the  property  in  question  has 
acquired  a  definite  location  in  another  state. 

Property  regularly  used  in  a  state  other  than  that  of  the 
domicile  of  the  owner  may  be  taxed  in  such  state  although  the 
specific  items  are  constantly  changing,  as  in  the  case  of  the  roll- 
ing stock  of  a  railroad,  and  the  valuation  of  the  property  may 
be  based  on  the  average  amount  of  such  property  within  the 
state.6  Such  average  may  be  determined  by  any  reasonable 
method  of  apportionment ;  but  a  method  of  apportionment  which 
results  in  a  valuation  greatly  in  excess  of  the  actual  value  of 
the  property  of  the  taxpayer  within  the  state  is  unconstitu- 
tional.7 Whether  the  regularity  of  use  which  would  justify  the 
taxation  of  property  in  a  state  other  than  that  of  the  owner's 
domicile  would  preclude  its  taxation  in  the  state  of  his  domicile 
when  it  could  not  be  shown  that  specific  articles  of  property 
were  permanently  absent  from  the  state  has  not  yet  been  de- 
cided.8 

3  Union  Refrigerator  Transit  Co.  v.  Kentucky,  199  U.  S.  194  (1905).  When 
the  capital  stock  of  a  domestic  corporation  is  taxed,  the  value  of  the  tangible 
property  of  the  corporation  definitely  located  outside  the  state  must  be  de- 
ducted.   Delaware,  etc.,  R.  R.  Co.  v.  Pennsylvania,  198  U.  S.  341   (1905). 

*  New  York  Central  R.  R.  Co.  v.  Miller,  202  U.  S.  584  (1906) ;  Ayer,  etc.. 
Tie  Company  v.  Kentucky,  202  U.  S.  409  (1906). 

5  Southern  Pacific  Co.  v.  Kentucky,  222  U.  S.  63   (1912). 
«  Marye   v.   Baltimore   etc.   R.   R.    Co.,    127   U.   S.    123    (1888);    Pullman's 
Palace  Car  Co.  v.  Pennsvlvania,  141  U.  S.  26  (1891). 

*  Union  Tank  Line  Co.  v.  Wright,  249  U.  S.  275   (1918). 

s  New  York  Central  R.  R.  Co.  v.  Miller,  202  U.  S.  584  (1906). 


sect.  44]  Territorial   Jurisdiction  73 


44.  The  Situs  of  Intangible  Personal  Property 

The  law  in  regard  to  the  situs  for  purposes  of  taxation  of 
intangible  personal  property,  such  as  shares  in  corporations,  bank 
deposits,  bonds,  notes  and  other  securities  and  choses  in  action 
generally,  is  in  a  state  of  development  and  in  its  present  situation 
somewhat  confusing,  and  requires  careful  analysis.  Intangible 
personal  property  is  of  value  only  because  it  represents  an  in- 
terest in  or  a  claim  against  tangible  personal  property;  but  not 
every  interest  in  tangible  property  is  intangible  property  for 
purposes  of  taxation,  even  though  it  is  represented  by  or  em- 
bodied in  a  paper  writing  by  means  of  which  the  interest  can 
be  assigned.  Thus  clearly  a  deed  or  a  lease  of  real  estate  is  not 
intangible  property  taxable  separately  from  the  real  estate  to 
which  it  relates;  and  when  tangible  property  is  stored  in  a  ware- 
house, negotiable  warehouse  receipts  are  not  intangible  prop- 
erty which  can  be  separately  taxed.1  Money  is  generally  con- 
sidered to  be  tangible  personal  property  for  purposes  of  taxation. 

The  situs  of  intangible  personal  property  may  be  based  on 
four  different  grounds,  and  the  same  property  might  conceivably 
have  a  taxing  situs  in  four  different  states  at  the  same  time  and 
be  subject  to  four  different  taxes  upon  its  value  as  property; 
and  while  such  a  situation  does  not  actually  appear  to  have 
arisen  in  any  instance  that  has  come  before  the  courts,  it  has 
never  been  held  that  the  acquisition  of  a  taxing  situs  in  one 
state  and  the  levy  of  a  tax  thereunder  precludes  the  levy  of  a 
tax  on  the  same  property  by  authority  of  another  state  in  which 
the  property  has  a  taxing  situs  in  accordance  with  some  other 
established  principle.2  The  principles  by  which  the  situs  of 
intangible  personal  property  is  established  are  as  follows: 

(1)  It  is  the  general  rule,  in  the  absence  of  controlling  cir- 
cumstances to  the  contrary,  that  the  situs  of  intangible  personal 
property  for  the  purposes  of  taxation  is  the  domicile  of  the 
owner.3 

1  Selliger  v.  Kentucky,  213  U.  S.  200   (1909). 

2  Kidd  v.  Alabama,  188  U.  S.  730,  732  (1903);  Fidelity  etc.  Trust  Co. 
v.  Louisville,  245  U.  S.  54  (1917);  Cream  of  Wheat  Co.  v.  Grand  Forks,  253 
U.  S.  325  (1920);  Dwight  v.  Boston,  12  Allen  316  (1866);  Bellows  Falls  Power 
Co.  v.  Commonwealth,  222  Mass.  51    (1915). 

3  Kirtland  v.  Hotchkiss,  100  U.  S.  491   (1879);   Bonaparte  v.  Tax  Court, 


74  Taxation    in   Massachusetts  [part  i 

(2)  When  capital  in  the  form  of  intangible  property  is 
regularly  employed  in  business  within  a  state,  such  property 
is  subject  to  taxation  by  such  state,  although  the  owner  is  dom- 
iciled in  another  state  and  the  securities  representing  the  prop- 
erty are  kept  in  another  state.4 

(3)  When  a  certain  form  of  paper  writing  has  by  commer- 
cial custom  come  to  be  treated  as  the  symbol  of  or  as  actually 
constituting  the  tangible  property  which  it  represents,  it  may 
be  taxed  in  the  state  in  which  it  is  permanently  kept,  regardless 
of  the  domicile  of  the  owner.5 

(4)  When  a  certain  form  of  intangible  personal  property 
is  connected  with  or  derives  its  value  from  tangible  property 
within  a  certain  state  or  depends  for  its  validity  upon  the  ex- 
ercise of  governmental  power  by  a  certain  state  it  may  under 


104  U.  S.  592  (1881);  New  Orleans  v.  Houston,  119  U.  S.  265,  277  (1886);  Kidd 
v.  Alabama,  188  U.  S.  731  (1903);  Covington  v.  Covington  etc.  Bank,  198  U.  S. 
100  (1905);  Union  Refrigerator  Transit  Co.  v.  Kentucky,  199  U.  S.  194  (1905); 
Buck  v.  Beach,  206  U.  S.  392  (1908) ;  Hawley  v.  Maiden,  232  U.  S.  1  (1914) ; 
Cream  of  Wheat  Co.  v.  Grand  Forks,  253  U.  S.  325  (1920);  Great  Barrington 
v.  Berkshire  County  Commissioners,  16  Pick.  572  (1835) ;  Dwight  v.  Boston,  12 
Allen  318  (1866);  Hawley  v.  Maiden,  204  Mass.  138  (1910);  Welch  v.  Boston, 
221  Mass.  155  (1915);  Bellows  Falls  Power  Co.  v.  Commonwealth,  222  Mass. 
51  (1915). 

4  New  Orleans  v.  Stempel,  175  U.  S.  309  (1899);  Bristol  v.  Washington 
County,  177  U.  S.  133  (1910) ;  State  Board  of  Assessors  v.  Comptoir  Nationale 
D'Escompte,  191  U.  S.  388  (1903);  Metropolitan  Life  Insurance  Co.  v.  New 
Orleans,  205  U.  S.  395  (1907) ;  De  Ganay  v.  Lederer,  250  U.  S.  376  (1919).  This 
principle  applies  when  securities  are  kept  in  a  state  for  the  business  advantage 
of  the  owner,  as  when  a  foreign  corporation  is  obliged  to  deposit  them  as  a 
condition  precedent  to  doing  business,  Scottish  etc.  Insurance  Co.  v.  Bowland, 
196  U.  S.  611  (1905).  In  case  of  taxation  on  account  of  business  situs  it  can 
make  no  difference  that  the  intangible  property  invested  in  the  state  is  not 
evidenced  by  written  instruments,  Liverpool  etc.  Insurance  Co.  v.  Orleans 
Board  of  Assessors,  221  U.  S.  346  (1911);  or  that  the  written  instruments  are 
actually  kept  in  another  state,  Bristol  v.  Washington  County,  177  U.  S.  133 
(1900);  Metropolitan  Life  Insurance  Co.  v.  New  Orleans,  205  U.  S.  395  (1911). 

5  This  principle  has  been  applied  to  stock  in  corporations,  Reardon  v. 
New  York,  '204  U.  S.  152  (1907),  and  to  public  securities,  such  as  state  and 
municipal  bonds,  and  bank  notes  circulating  as  money,  State  Tax  on 
Foreign  Held  Bonds,  15  Wall.  300  (1872) ;  but  it  was  formerly  considered  to 
be  the  law  that  promissory  notes  and,  probably,  bonds  of  private  corporations, 
have  no  taxing  situs  based  on  mere  physical  location,  State  Tax  on  Foreign 
Held  Bonds,  15  Wall.  300  (1872);  Kirtland  v.  Hotchkiss,  100  U.  S.  491  (1879); 
Buck  v.  Beach,  206  U.  S.  392  (1908).  In  Wheeler  v.  Sohmer,  23  U.  S.  434 
(1914),  it  was  held  that  promissory  notes  had  a  situs  in  the  state  in  which  they 
were  physically  present  sufficient  to  support  an  inheritance  tax  and  the  reasoning 
of  the  court  would  extend  this  principle  to  a  property  tax.  Four  judges  dis- 
agreed with  this  reasoning,  so  the  law  as  to  situs  of  notes  for  purposes  of  a 
property  tax  is  uncertain. 


sect.  45 J  Territorial   Jurisdiction  75 

some  circumstances  be  taxed  by  the  state  in  which  such  prop- 
erty is  situated  or  power  exercised.6 

45.  Particular  Classes  of  Intangible  Property 

Upon  the  principle  that  the  situs  of  intangible  property 
is  the  domicile  of  the  owner,  it  is  universally  held  that  a  debt 
is  taxable  at  the  domicile  of  the  creditor,  since  the  creditor  and 
not  the  debtor  is  clearly  the  owner  of  a  debt.1  It  was  formerly 
considered  that  as  a  corollary  to  the  foregoing  rule  a  state  had 
no  jurisdiction  to  tax  a  debt  merely  by  reason  of  the  residence 
of  the  debtor  within  its  limits.2  The  later  cases  have  however 
held  that  the  state  having  jurisdiction  over  the  debtor  also  has 
the  constitutional  power  to  assert  and  maintain  for  itself  a  situs 
of  the  debt  for  purposes  of  taxation  and  to  levy  a  tax  thereon 
against  the  creditor  domiciled  in  another  state.  This  principle 
applies  not  only  in  the  case  of  inheritance  taxes,3  but  to  property 
taxes  as  well;  to  taxes  on  debts  secured  by  mortgage4  and  to 
taxes  on  unsecured  debts  as  well,  whether  expressed  by  notes 
or  existing  as  bald  accounts  current.5  Jurisdiction  in  such  cases 
is  based  upon  the  fact  that  ordinarily  it  is  necessary  for  the  cred- 
itor to  resort  to  the  courts  of  the  debtor's  domicile  to  enforce 
payment  of  the  debt. 

In  the  case  of  debts  secured  by  mortgage  of  real  estate  there 
is  also  jurisdiction  to  tax  the  debt  in  the  state  in  which  the 

6  Thus  a  mortgage  may  be  taxed  to  the  mortgagee  by  the  state  in  which 
the  mortgaged  land  is  situated,  Savings  etc.  Society  v.  Multnomah  County,  169 
U.  S.  421  (1898);  a  bank  deposit  may  be  taxed  to  the  depositor  in  the  state 
in  which  the  bank  is  situated,  Fidelity  etc.  Trust  Co.  v.  Louisville,  245  U.  S. 
54  (1917);  stock  in  a  corporation  may  be  taxed  in  the  state  in  which  the 
corporation  is  organized,  Cony  v.  Baltimore,  196  U.  S.  466  (1905);  Rogers  v. 
Hennepin  County,  240  U.  S.  184  (1916) ;  Bellows  Falls  Power  Co.  v.  Common- 
wealth, 222  Mass.  51  (1915) ;  and  a  franchise  may  be  taxed  in  the  state  in 
which  it  is  exercised,  Louisville  etc.  Ferry  Co.  v.  Kentucky,  188  U.  S.  385 
(1903),  although  in  each  case  the  owner  of  the  property  is  resident  in  another 
state. 

1  Kirtland  v.  Hotchkiss,  100  U.  S.  491  (1879);  Bonaparte  v.  Tax  Court, 
104  U.  S.  592  (1881).  See  also  Frothingham  v.  Shaw,  175  Mass.  59  (1899).  The 
fact  that  a  debt  is  secured  by  mortgage  of  real  estate  in  another  state  does 
not  deprive  the  state  of  the  creditor's  domicile  of  the  right  to  tax  the  debt, 
Kirtland  v.  Hotchkiss,  100  U.  S.  491  (1879). 

2  State  Tax  on  Foreign  Held  Bonds,  15  Wall.  300  (1872) ;  Murray  v. 
Charleston,  96  U.  S.  432  (1877). 

3  Infra  §  47. 

4  Savings  etc.  Society  v.  Multnomah  County,  169  U.  S.  432  (1898). 

5  Liverpool  etc.  Insurance  Co.  v.  Orleans  Board  of  Assessors,  221  U.  S. 
346  (1911).    See  also  Bliss  v.  Bliss,  221  Mass.  201  (1915). 


76  Taxation   in   Massachusetts  [part  i 

real  estate  is  situated,6  and,  in  the  case  of  state  and  municipal 
bonds  and  bank  notes  current  as  money,  there  is  a  taxing  situs 
where  the  paper  writings  which  express  the  debt  are  kept;7  and 
when  one  employs  his  capital  in  creating  credits  or  lending 
money  as  a  permanent  business  in  another  state,  or  for  some 
business  advantage  deposits  evidences  of  indebtedness  in  another 
state,  the  debts  may  be  taxed  in  the  state  in  which  they  have 
thus  acquired  a  "business  situs".8 

Shares  of  stock  in  corporations  are  taxable  at  the  domicile 
of  the  stockholders  without  regard  to  the  state  from  which  the 
corporation  received  its  charter,  or  the  place  where  its  property 
is  located  or  its  business  carried  on,9  and  the  state  in  which  a 
corporation  is  chartered  cannot  even  by  express  legislation  so 
far  invest  its  stock  with  a  local  situs  that  it  cannot  be  taxed 
when  owned  by  residents  of  another  state;10  but  a  state  may 
by  virtue  of  its  authority  over  corporations  of  its  own  creation 
tax  all  the  shares  of  such  corporations  regardless  of  the  domicile 
of  the  shareholders.11    So  also,  while  it  commonly  has  been  sup- 

6  Savings  etc.  Society  v.   Multnomah  County,   169  U.  S.  432    (1898).     See  . 
also  Kinney  v.  Treasurer  &  Receiver  General,  207  Mass.  308  (1911). 

7  State  Tax  on  Foreign  Held  Bonds,  15  Wall.  300  (1872).  See  also  Callahan 
v.  Woodbridge,  171  Mass.  595  (1898);  and  see  as  to  promissory  notes  Wheeler 
v.  Sohmer,  233  U.  S.  434  (1914)  supra  section  44. 

8  New  Orleans  v.  Stempel,  175  U.  S.  309  (1899) ;  Bristol  v.  Washington 
County,  177  U.  S.  133  (1900);  State  Board  of  Assessors  v.  Comptoir  Nationale 
D'Escompte,  191  U.  S.  388  (1903);  Scottish  etc.  Insurance  Co.  v.  Bowland,  196 
U.  S.  611  (1905);  Metropolitan  Life  Insurance  Co.  v.  New  Orleans,  205  U.  S. 
395  (1907).  A  foreign  insurance  company  cannot  be  taxed  on  the  so-called 
loans  made  through  its  local  agents  to  residents  of  a  state,  since  such  transac- 
tions are  not  really  loans,  but  deductions  from  the  liability  of  the  insurance 
company  to  its  policy  holders.  Orleans  Board  of  Assessors  v.  New  York  Life 
Insurance  Co.,  216  U.  S.  517  (1910).  A  foreign  insurance  company  may  however 
be  taxed  on  the  amounts  due  for  premiums  on  which  credit  has  been  extended, 
either  to  the  insured,  Liverpool  etc.  Insurance  Co.  v.  Orleans  Board  of  Assessors, 
221  U.  S.  346  (1911),  or  to  the  local  agents  of  the  company,  Orient  Insurance 
Co.  v.  Orleans  Board  of  Assessors,  221  U.  S.  358  (1911). 

9  Sturgis  v.  Carter,  114  U.  S.  511  (1885);  New  Orleans  v.  Houston,  119 
U.  S.  265,  277  (1886);  Kidd  v.  Alabama,  188  U.  S.  730  (1903);  Wright  v.  Louis- 
ville etc.  R.  R.  Co.,  195  TJ.  S.  219  (1904);  Union  Refrigerator  Transit  Co.  v. 
Kentucky,  199  U.  S.  194  (1905);  Darnell  v.  Indiana,  226  U.  S.  390  (1912); 
Hawley  v.  Maiden,  232  IT.  S.  1  (1914) ;  Great  Barrington  v.  Berkshire  County 
Commissioners,  16  Pick.  572  (1835);  Dwieht  v.  Boston,  12  Allen  316  (1866); 
Hawley  v.  Maiden,  204  Mass.  138  (1910) ;  Bellows  Falls  Power  Co.  v.  Common- 
wealth, 222  Mass.  51  (1915);  Welch  v.  Treasurer  &  Receiver  General,  223  Mass. 
87  (1916). 

10  Bellows  Falls  Power  Co.  v.  Commonwealth,  222  Mass.  51   (1915). 

11  Corry  v.  Baltimore.  196  U.  S.  466  (1905) ;  Rogers  v.  Hennepin  County. 
240  U.  S.  184  (1916)  ;  Bellows  Falls  Power  Co.  v.  Commonwealth,  222  Mass. 
51  (1915);  Welch  v.  Treasurer  &  Receiver  General,  223  Mass.  87,  92  (1916). 


sect.  45]  Territorial   Jurisdiction  77 

posed  that  the  certificate  of  stock  in  a  corporation  can  have  no 
independent  situs,  dependent  upon  its  physical  location,  apart 
from  the  domicile  of  the  corporation  or  of  the  owner,  recent 
cases  seem  to  indicate  that  there  may  be  a  taxing  situs  where 
the  stock  certificate  is  kept.12  But  the  shares  of  stock  in  a  cor- 
poration cannot  be  taxed  by  a  state  merely  because  the  corpor- 
ation owns  property  within  such  state.13 

Deposits  in  a  bank  may  be  taxed  at  the  domicile  of  the  de- 
positor, even  if  the  bank  is  located  in  another  state;14  but  they 
may  also  be  taxed  in  the  state  in  which  the  bank  is  situated 
if  they  are  used  as  incidental  to  the  employment  of  capital  in 
business  in  such  state,15  and  probably  are  locally  taxable  even 
if  they  are  not  used  in  business  and  are  deposited  in  a  bank 
in  another  state  merely  for  the  convenience  of  the  de- 
positor.16 

A  franchise  or  privilege  derived  from  the  government  of  a 
state  has  its  situs  for  the  purposes  of  taxation  in  the  state  by 
which  it  was  granted  rather  than  in  the  domicile  of  the  holder 
or  grantee.17  The  mere  right  to  exist  as  a  corporation  is  a  fran- 
chise, but  such  franchise  is  not  taxable  in  any  state  other  than 
that  by  which  the  franchise  was  granted.18  When  a  state  taxes 
a  foreign  corporation  on  account  of  its  franchise,  it  is  the  priv- 
ilege of  doing  business  in  such  state  which  is  taxed,  and  not 
the  privilege  of  existing  as  a  corporation;  and  conversely  the 
state  of  incorporation  cannot  of  course  tax  a  corporation  for 
the  privilege  of  doing  business  in  another  state.19  Accordingly 
when  a  corporation  does  business  in  several  states  the  franchise 
to  carry  on  business  as  distinguished  from  the  franchise  to  exist 
as  a  corporation  has  a  taxing  situs  wherever  the  business  is  car- 
ried on,  without  regard  to  the  state  of  incorporation  or  the  home 
office  of  the  company  and  may  be  included  in  the  aggregate 
assets  of  the  corporation  and  the  portion  of  such  assets  may  be 

12  Reardon  v.  New  York.  204  U.  S.  152  (1907) ;  Welch  v.  Treasurer  & 
Receiver  General,  223  Mass.  87,  93   (1916). 

is  Welch  v.  Treasurer  &  Receiver  General,  223  Mass.  87  (1916). 

14  Fidelity  etc.  Trust  Co.  v.  Louisville,  245  U.  S.  54  (1917). 

15  New  Orleans  v.  Stempel,  175  U.  S.  309  (1899).  See  also  Blackstone  v. 
Miller,  188  U.  S.  189  (1903). 

is  Fidelity  etc.  Trust  Co.  v.  Louisville,  245  U.  S.  54  (1917). 
"  Louisville  etc.  Ferry  Co.  v.  Kentucky,  188  U.  S.  385  (1903). 
is  American  Glue  Co.  v.  Commonwealth,   195   Mass.  528   (1907). 
"  Louisville  etc.  Ferry  Co.  v.  Kentucky,  188  U.  S.  385  (1903). 


78  Taxation   in   Massachusetts  [part  i 

assessed  in  a  state  proportionate  to  the  business  carried  on 
within  such  state  as  compared  with  the  total  business  of  the 
corporation.20 

46.  The  Situs  of  Personal  Property  in  the  Hands  of  a 

Fiduciary 

In  some  jurisdictions  the  situs  of  the  personal  property  of 
a  deceased  person  is  considered  to  be  prima  facie  the  place  where 
the  deceased  last  dwelt.1  The  notion  that  a  man's  personal  prop- 
erty upon  his  death  may  be  regarded  as  a  unit  and  taxed  as 
such,  even  if  qualified,  is  still  recognized  in  this  country,2  and 
while  property  of  a  deceased  person  which  has  acquired  a  situs 
in  a  state  other  than  that  in  which  he  last  dwelt  may  doubtless 
be  taxed  in  such  state,3  it  is  not  at  all  clear  that  so  far  as  the 
United  States  constitution  is  concerned  it  may  not  also  be  taxed 
to  his  executor  in  the  state  in  which  the  decedent  last  dwelt. 
In  this  commonwealth  however  the  power  of  the  state  to  tax 
the  personal  estate  of  a  deceased  person  is  ascribed  to  jurisdic- 
tion over  the  executor  or  administrator  as  legal  owner  of  the 
property  and  depends  upon  the  domicile  of  the  executor  or  ad- 
ministrator except  in  the  case  of  property  which  has  acquired 
a  situs  elsewhere.4  It  has  accordingly  been  held  that  a  non-resi- 
dent executor  of  a  resident  decedent  is  not  taxable  for  intangible 
personal  property  situated  in  another  state  and  which  he 
holds  as  ancillary  executor  under  appointment  from  the  courts 
of  such  state;5  and  that  even  a  resident  executor  of  a  resident 
decedent  is  not  taxable  for  personal  property  situated  in  another 
state  which  is  held  by  an  ancillary  administrator  who  is  a  resi- 
dent of  such  state;  for  the  legal  title  is  in  the  ancillary  admin- 
istrator and  not  within  the  ownership,  possession  or  control  of 
the  executor.6 

As  the  trustee  is  the  legal  owner  of  property  held  in  trust, 

20  Adams  Express  Co.  v.  Ohio  State  Auditor,  166  U.  S.  185  (1897). 

1  Carpenter  v.  Pennsylvania,  17  How.  456  (1848);  Sears  v.  Nahant,  215 
Mass.  329  (1913). 

2  Eidman  v.  Martinez,  184  U.  S.  578,  586  (1902) ;  Bullen  v.  Wisconsin,  240 
U.  S.  625,  631  (1916);  Fidelity  etc.  Trust  Co.  v.  Louisville,  245  U.  S.  54  (1917). 

3  See  Cotton  v.  Boston,  161  Mass.  8  (1894). 

4  The  statement  in  the  text  applies  only  to  situs  as  between  different 
states.  As  between  different  towns  in  the  commonwealth  another  rule  applies. 
See  infra  page  245. 

5  Putnam  v.  Middleborough,  209  Mass.  456  (1911). 

6  Gray  v.  Lenox,  215  Mass.  598  (1913). 


sect.  47]  Territorial   Jurisdiction  79 

such  property  is  taxable  at  the  domicile  of  the  trustee  unless  it 
has  acquired  a  situs  in  some  other  state  so  that  it  would  not  be 
taxable  at  the  domicile  of  the  trustee  if  held  by  him  in  his  own 
right.  Intangible  property  held  in  trust  is  taxable  at  the  domi- 
cile of  the  trustee,  although  the  trustee  was  appointed  by  the 
probate  court  of  another  state,  the  beneficiaries  are  residents  of 
another  state  and  the  securities  in  which  the  property  is  in- 
vested are  physically  located  in  another  state.7  On  the  other 
hand  the  beneficiary  has  important  property  rights  in  the  trust 
fund  which  are  personal  to  him  and  which  may  be  taxed  as 
property  in  the  state  of  the  beneficiary's  domicile,  although 
the  trustee  resides  and  the  securities  are  kept  in  another  state.8 
That  there  may  be  as  a  consequence  double  taxation  of  the  same 
property  does  not  make  the  taxation  of  trust  property  in  either 
case  unconstitutional.9 

When  there  is  more  than  one  trustee,  and  the  trustees  are 
residents  of  different  states,  but  as  commonly  happens  in  such 
cases  it  appears  that  the  trustees  were  appointed  by  the  courts 
of  the  state  in  which  the  securities  are  physically  present  and 
the  managing  trustee  lives  in  such  state,  the  entire  trust  fund 
is  prima  facie  taxable  in  such  state.10  It  is  probable  however 
that  a  statute  '  requiring  the  taxation  of  a  proportionate 
part  of  the  trust  fund  in  a  state  in  which  one  of  the  other 
trustees  resided  would  be  constitutional,  although  it  would  re- 
sult in  double  taxation.11 


47.   Situs  of  Property  for  Purposes  of  Inheritance 

Taxation 

The  power  of  the  state  to  levy  inheritance  taxes  is  less  sub- 
ject to  limitations  based  upon  the  situs  of  property  than  its 
power  to  levy  direct  property  taxes,  for  not  only  does  the  state 
have  the  power  to  levy  taxes  on  the  succession  of  property  which 
by  reason  of  the  domicile  of  the  owner  or  the  physical  presence 

7  Hemenway  v.  Milton,  217  Mass.  230  (1914);  Welch  v.  Boston,  221  Mass. 
155  (1915). 

8  Hunt  v.  Perry,  165  Mass.  287  (1896) ;  Maguire  v.  Tax  Commissioner,  230 
Mass.  503  (1918). 

9  Hunt  v.  Perry,  165  Mass.  287  (1896). 

10  Newcomb  v.  Paige,  224  Mass.  516  (1916);  Crocker  v.  Maiden,  229  Mass. 
313  (1918). 

11  Newcomb  v.  Paige,  224  Mass.  516  (1916). 


80  Taxation    in   Massachusetts  [part  i 

of  the  property  is  within  its  jurisdiction  for  the  purposes  of  direct 
taxation,  but  also  under  some  circumstances  an  excise  tax  may 
be  upheld  upon  the  succession  to  property  where  a  direct  prop- 
erty tax  might  not  be  sustained.  The  only  cases  however  in 
which  a  tax  on  the  succession  can  be  sustained  in  the  absence 
of  corporeal  jurisdiction  over  the  property  itself  are  those  in 
which  some  necessary  incident  in  the  transfer  of  title  depends 
for  its  efficacy  upon  the  law  of  the  state  levying  the  tax;  and 
when  property  is  not  physically  within  the  jurisdiction  of  the 
taxing  power,  and  when  its  complete  succession  can  be  accom- 
plished without  invoking  any  privilege  or  sanction  conferred 
by  its  laws,  there  is  nothing  to  which  taxation  can  attach. 

With  respect  to  real  estate,  the  jurisdiction  to  levy  an  in- 
heritance tax  is  confined  to  the  state  in  which  the  real  estate 
is  located,  since  in  case  of  intestacy  the  devolution  of  the  property 
depends  upon  the  law  of  such  state  and  the  will  of  a  deceased 
non-resident  can  have  no  effect  over  real  property  unless  it  is 
admitted  to  ancillary  probate  in  the  state  in  which  the  property 
is  situated.  Consequently  a  state  cannot  levy  an  inheritance 
tax  upon  the  succession  to  the  real  estate  of  a  resident  decedent 
situated  in  another  state,1  and  conversely  a  state  may  tax  the 
succession  to  the  real  estate  of  a  non-resident  decedent  situated 
within  its  limits.2  When  the  interest  of  the  decedent  in  the 
real  estate  is  equitable,  as  in  the  case  of  shares  in  a  real  estate 
trust,  the  succession  is  nevertheless  taxable  in  the  state  in  which 
the  real  estate  is  situated.3  When  however  under  the  terms  of 
a  trust  agreement  the  trustees  hold  both  real  and  personal  prop- 
erty and  the  interest  of  each  beneficiary  is  a  right  to  a  share  of 
the  net  proceeds  when  the  entire  trust  property  is  sold,  the  entire 
share  of  each  beneficiary  is  personal  property  and  taxable  accord- 
ing to  the  rules  applicable  to  that  class  of  property.4    Mortgages 

1  Dana  v.  Treasurer  &  Receiver  General,  227  Mass.  562  (1917). 

2  Callahan  v.  Woodbridge,  171   Mass.  595   (1898). 

3  Kinney  v.  Treasurer  &  Receiver  General,  207  Mass.  368  (1911) ;  Dana  v. 
Treasurer  &  Receiver  General,  227  Mass.  562  (1917);  Priestley  v.  Treasurer  & 
Receiver  General,  230  Mass.  452  (1918). 

4  Dana  v.  Treasurer  &  Receiver  General,  227  Mass.  562  (1917);  Priestley 
v.  Treasurer  &  Receiver  General,  230  Mass.  452  (1918).  A  state  may  tax  the 
succession  to  shares  in  a  real  estate  trust  without  regard  to  the  location  of 
the  trust  property  or  the  domicile  of  the  shareholder  if  the  trustees  live  and 
the  books  are  kept  within  its  limits,  so  that  resort  must  be  had  to  the  state 
to  effect  a  transfer.  Peabody  v.  Treasurer  &  Receiver  General,  215  Mass.  129 
(1913);  Dana  v.  Treasurer  &  Receiver  General,  227  Mass.  562,  570  (1917); 
Priestley  v.  Treasurer  &  Receiver  General,  230  Mass.  452,  454  (1918). 


sect.  47]  Territorial   Jurisdiction  81 

of  real  estate  are  subject  to  the  inheritance  taxes  of  the  state 
in  which  the  real  estate  is  situated,5  while  the  debt  secured  by 
the  mortgage  is  taxable  as  personal  property  in  the  state  of  the 
mortgagee's  domicile.6  When  the  real  estate  of  a  deceased  non- 
resident is  subject  to  a  mortgage,  only  the  excess  of  the  value 
of  the  real  estate  over  the  amount  of  the  mortgage  is  taxable 
in  the  state  in  which  the  real  estate  is  situated,  even  if  there 
was  sufficient  personal  property  in  the  estate  to  have  paid  off 
the  mortgage  debt.7 

The  personal  property  of  a  decedent  wherever  located  is 
treated  as  a  unit  and  is  subject  to  inheritance  taxation  in  the  state 
of  the  owner's  domicile;8  and  the  same  principle  applies  to  a 
tax  on  the  transfer  of  property  made  in  contemplation  of  death 
when  subject  to  an  inheritance  tax  by  the  law  of  the  decedent's 
domicile.9  Nevertheless  the  property  of  a  decedent  may  also 
be  taxed  in  a  state  in  which  it  is  found  at  the  death  of  the  de- 
cedent, if  its  presence  there  was  more  than  transitory.10  Under 
this  principle  the  presence  within  a  state  of  securities,  such  as 
bonds  and  notes  evidencing  a  debt,  justify  an  inheritance  tax 
upon  the  debt  at  the  death  of  the  owner  of  the  securities.11  Upon 
the  same  principle  shares  of  stock  in  a  corporation  may  be  taxed 
in  a  state  in  which  the  stock  certificates  are  kept.12 

Another  ground  for  the  subjection  of  personal  property  to 
the  inheritance  tax  is  the  necessity  of  resorting  to  the  juris- 
diction of  the  state  to  enjoy  the  benefits  of  the  succession. 
Whenever  a  right  of  pecuniary  value  which  belonged  to  the  dece- 
dent cannot  be  enjoyed  or  enforced  by  the  person  to  whom  it 
passed  at  his  death  without  resorting  to  the  jurisdiction  of  a 

5  Kinney  v.  Treasurer  &  Receiver  General,  207  Mass.  368  (1911);  Hawkridge 
v.  Treasurer  &  Receiver  General,  223  Mass.  134  (1916). 

6  Frothingham  v.  Shaw,   175   Mass.  59   (1899). 

7  McCurdy  v.  McCurdy,  197  Mass.  248  (1908). 

8  Bullen  v.  Wisconsin,  240  U.  S.  625  (1916) ;  Frothingham  v.  Shaw,  175 
Mass.  59  (1899);  Dana  v.  Treasurer  &  Receiver  General,  227  Mass.  562  (1917). 

9  Keeney  v.  New  York,  222  U.  S.  525  (1912). 

10  Blackstone  v.  Miller,  188  U.  S.  189  (1903) ;  Wheeler  v.  Sohmer,  233 
U.  S.  434  (1914);  Callahan  v.  Woodbridge,  171  Mass.  595  (1898). 

11  Wheeler  v.  Sohmer,  233  U.  S.  434  (1914) ;  Iowa  v.  Shimmer,  248  U.  S. 
115  (1918);  Callahan  v.  Woodbridge,  171  Mass.  595  (1898).  See  also,  Kennedy 
v.  Hodges.  215  Mass.  112   (1913). 

12  This  would  seem  to  follow  from  the  decision  in  Hatch  v.  Reardon, 
204  U.  S.  152  (1907).  although  a  contrary  opinion  is  expressed,  arguendo,  in 
Kennedy  v.  Hodges,  215  Mass.  112,  115  (1917)  which  was  followed  in  Clark  v. 
Treasurer  &  Receiver  General,  218  Mass.  292  (1914). 


82  Taxation    in   Massachusetts  [part  i 

certain  state,  such  state  may  subject  the  succession  to  such 
property  to  inheritance  taxes.13  For  this  reason  the  succession 
to  stock  in  a  corporation  can  be  taxed  in  the  state  under  the 
laws  of  which  the  corporation  was  established,  without  regard 
to  the  domicile  of  the  decedent  or  the  place  in  which  the  stock 
certificate  was  kept,  for  the  succession  cannot  be  enjoyed  with- 
out resorting  to  the  state  of  incorporation  to  effect  a  transfer 
of  the  stock.14  This  principle  does  not,  however,  extend  so  far 
as  to  justify  the  taxation  of  the  succession  to  stock  in  a  corpora- 
tion solely  on  the  ground  that  the  corporation  owns  real  estate 
in  the  state  seeking  to  impose  the  tax,  even  if  the  state  has 
physical  power  to  enforce  the  tax  by  requiring  payment  as  a 
condition  precedent  to  allowing  the  transfer  of  other  property 
over  which  it  has  jurisdiction.15  When,  however,  a  corporation 
is  chartered  in  two  or  more  states  under  the  same  name  although 
it  has  but  one  issue  of  stock,  and  its  property  and  franchises  in 
the  different  states  constitute  the  basis  of  the  value  of  its  stock, 
each  one  of  the  states  may  impose  an  inheritance  tax  on  the 
succession  to  shares  of  the  stock  and  in  valuing  the  shares  for 
the  purpose  of  the  tax  include  the  property  of  the  corporation 
wherever  situated.16 

Upon  the  same  principle,  if  a  debt  can  be  enforced  only  by 
resorting  to  the  courts  of  the  debtor's  domicile,  the  succession 
to  the  debt  can  be  taxed  in  the  state  in  which  the  debtor  resides 
without  regard  to  the  domicile  of  the  decedent  or  the  place  in 
which  the  securities  which  evidence  the  debt  are  kept.17  Con- 
versely however,  even  if  the  debtor  resides  within  the  state 
seeking  to  impose  the  tax,  if  the  debt  can  be  fully  enforced  with- 

13  Blackstone  v.  Miller,  188  U.  S.  189  (1903);  Walker  v.  Treasurer  &  Re- 
ceiver General,  221  Mass.  600  (1915). 

14  Greves  v.  Shaw,  173  Mass.  205  (1899);  Bliss  v.  Bliss,  221  Mass.  201 
(1915).  The  same  principle  applies  to  shares  in  national  banks  in  the  state 
in  which  the  bank  is  situated,  Greves  v.  Shaw,  173  Mass.  205  (1899),  and  to 
shares  in  unincorporated  associations  in  the  state  in  which  the  principal  place 
of  business  is  located,  supra  Note  4. 

15  Welch  v.  Treasurer  &  Receiver  General,  223  Mass.  87  (1916). 

16  Moody  v.  Shaw,  173  Mass.  375  (1899) ;  Kingsbury  v.  Chapin,  196  Mass. 
533  (1907);  Welch  v.  Treasurer  &  Receiver  General,  223  Mass.  87  (1916). 
Such  a  harsh  rule  will  not  be  applied  unless  the  statute  requires  it,  Kingsbury 
v.  Chapin,  196  Mass.  533   (1907). 

«  Blackstone  v.  Miller,  188  U.  S.  189  (1903);  Bliss  v.  Bliss,  221  Mass.  201 
(1915).  This  principle  applies  to  simple  contract  debts  and  to  debts  evidenced 
by  registered  bonds;  but  whether  it  applies  to  bonds  and  notes  negotiable  by 
delivery  is  open  to  question.     Bliss  v.  Bliss,  221  Mass.  201   (1915). 


sect.  27]  Territorial   Jurisdiction  83 

out  resorting  to  the  courts  of  such  state,  there  is  no  jurisdiction 
to  enforce  the  tax,  even  if  the  state  by  reason  of  control  over 
other  property  of  the  decedent  has  physical  power  to  exact 
payment.18 

In  taxing  a  succession  resulting  from  the  exercise  of  a  power 
of  appointment  the  test  to  be  applied  in  determining  whether 
property  is  taxable  is  whether  the  property  is  subject  to  the 
jurisdiction  of  the  state.19  A  state  cannot  tax  property  having 
a  situs  in  another  state  merely  because  the  donee  of  the  power 
resided  within  its  limits,  since  the  donee,  of  the  power  is  not  the 
owner  of  the  property.20 

The  application  of  the  foregoing  principles  frequently  results 
in  the  taxation  of  the  succession  of  the  same  property  by  two  or 
more  states,  and  it  may  be  subject  to  the  federal  estate  tax  as 
well,  but  double  or  multiple  taxation  of  this  character  does  not 
violate  any  constitutional  principle  if  each  state  is  acting  within 
its  recognized  jurisdiction.21  Double  taxation  cannot  be  evaded 
by  marshalling  the  assets  bf  the  estate  in  such  a  way  as  to  de- 
prive a  state  of  its  inheritance  tax,  since  the  right  of  a  state  to  the 
tax  becomes  vested  on  the  death  of  the  decedent,22  nor  can  it 
be  evaded  by  forming  a  corporation  merely  for  the  purpose  of 
holding  stock  and  avoiding  the  necessity  of  a  transfer  upon  the 
death  of  a  person  having  the  real  beneficial  interest.23 

Ordinarily  in  determining  whether  a  legacy  or  distributive 
share  comes  within  a  statutory  exemption  or  in  fixing  the  rate 
of  taxation  only  property  within  the  jurisdiction  of  the  state 
imposing  the  tax  is  considered;24  but  there  is  nothing  uncon- 
stitutional in  a  statute  establishing  a  graduated  inheritance  tax 
and  'providing  that  the  tax  should  be  first  ascertained  as 
if  the  entire  estate  of  the  decedent  were  subject  to  taxation  and 
then  assessed  in  the  proportion  that  the  property  taxable  within 
the  state  bears  to  the  entire  estate.25 

18  Bliss  v.  Bliss,  221  Mass.  201   (1915). 

19  Clark  v.  Treasurer  &  Receiver  General,  218  Mass.  292  (1914). 

20  Walker  v.  Treasurer  &  Receiver  General,  221  Mass.  600  (1915). 

21  Blackstone  v.  Miller,  188  U.  S.  189  (1903).    See  also  supra  §33. 

22  Kingsbury  v.  Chapin,  196  Mass.  533  (1907). 

23  Gardiner  v.  Treasurer  &  Receiver  General,  225  Mass.  355  (1916). 

24  Attorney  General  v.  Barney,  211  Mass.  134  (1912). 

25  Maxwell  v.  Bugbee,  250  U.  S.  525  (1919). 


84  Taxation   in   Massachusetts  [part  i 

48.  Territorial  Jurisdiction  for  the  Levy  of  Excises 
The  power  to  levy  an  excise  depends  upon  control  over  the 
act,  occupation  or  privilege  which  is  the  subject  of  the  tax  rather 
than  upon  the  domicile  of  the  taxpayer  or  the  physical  location 
of  the  property  used  in  connection  with  the  act,  occupation  or 
privilege  taxed.  Power  to  effectively  prohibit  the  performance 
of  an  act  until  a  tax  has  been  paid  thereon  affords  a  means  of 
enforcement  which  the  law  recognizes  as  sufficient  to  establish 
jurisdiction.1  Thus  a  state  may  impose  an  excise  upon  the  per- 
formance of  a  certain  act  within  its  limits  which  can  be  lawfully 
enforced  even  when  the  act  is  performed  by  persons  who  are  not 
residents  of  the  state  and  with  respect  to  property  which  has 
never  been  within  its  boundaries,  as  in  the  case  of  a  stamp  tax 
on  sales,  which  may  be  enforced  in  the  case  of  a  transaction  be- 
tween non-residents  respecting  property  located  outside  the 
state.2 

Conversely  a  state  cannot  tax  the  performance  of  an  act  out- 
side its  territorial  jurisdiction;  it  cannot  continue  to  levy  an 
occupation  tax  upon  a  corporation  after  it  has  ceased  to  do 
business  within  its  limits.3 

49.  Territorial  Jurisdiction  for  the  Levy  of  Income  Taxes 

A  state  may  tax  the  incomes  of  persons  resident  within  its 
territorial  limits  arising  from  business  carried  on  in  other  states, 
or  from  interstate  commerce.1  It  may  doubtless  tax  the  income 
from  intangible  personal  property  owned  by  its  own  citizens, 
without  regard  to  the  place  where  the  securities  representing 
such  property  are  kept  or  where  the  tangible  property  or  busi- 
ness which  such  securities  represent  or  from  which  they  derive 
their  value  is  located.  It  may  tax  income  received  by  one  of 
its  own  citizens  from  a  trust  fund  held  by  a  trustee  resident  in 
another  state.2    It  is  however  open  to  serious  question  whether 

1  Blackstone  v.  Miller,  188  U.  S.  189,  205  (1903) ;  Liverpool  etc.  Insurance 
Co.  v.  Orleans  Board  of  Assessors,  221  U.  S.  346,  354  (1911);  Shaffer  v.  Carter, 
252  U.  S.  37,  49  (1920). 

2  Hatch  v.  Reardon,  204  TJ.  S.  152  (1907). 

3  Provident  etc.  Assurance  Society  v.  Kentucky,  239  U.  S.  103  (1915).  But 
an  insurance  company  doing  business  within  a  state  may  be  compelled  to  pay 
a  tax  on  premiums  paid  by  residents  of  the  state,  though  actually  received  out- 
side the  state.  Equitable  Life  Assurance  Society  v.  Pennsylvania,  238  U.  S. 
143  (1915). 

1  United  States  Glue  Co.  v.  Oak  Creek,  247  U.  S.  321  (1918). 

2  Maguire  v.  Trefry,  253  TJ.  S.  12  (1920)  affirming  Maguire  v.  Tax  Com- 
missioner, 230  Mass  503  (1918). 


sect.  50]  Territorial  Jurisdiction  85 

a  state  can  constitutionally  tax  income  received  by  one  of  its 
own  citizens  from  real  estate  situated  in  another  state  or  from 
tangible  personal  property  permanently  located  in  another  state, 
since  an  income  tax  on  such  property  is  a  property  tax,  and 
real  estate  and  tangible  personal  property  cannot  be  subjected 
to  a  property  tax  at  the  domicile  of  the  owner  when  it  has  a 
situs  in  another  state.3 

A  state  may  also  impose  income  taxes  upon  non-residents 
with  respect  to  income  accruing  to  them  from  their  property 
located  or  business  carried  on  within  the  state,4  provided  only 
that  such  taxes  are  of  like  character  to  the  taxes  imposed  upon 
residents  of  the  state  and  not  more  onerous  in  their  effect.5 
When  a  non-resident  or  a  foreign  corporation  carries  on  business 
both  within  and  without  a  state,  it  is  often  a  matter  of  difficulty 
to  determine  the  proportion  of  the  income  attributable  to  the 
state  levying  the  tax,  and  a  rule  or  formula  for  allocating  the 
income  may  be  constitutionally  established  even  if  it  does  not 
work  with  precision  in  every  case,  provided  it  is  not  wholly 
arbitrary  and  unreasonable.6 

50.   Territorial  Jurisdiction  for  the  Collection  of  Taxes 

There  is  no  good  reason  why  a  tax  upon  real  or  personal  prop- 
erty of  a  non-resident  situated  within  the  limits  of  a  state  can- 
not be  assessed  to  the  owner  rather  than  in  rem  against  the  par- 
ticular property  to  which  it  relates.1  If  the  owner  is  a  foreign 
corporation,  not  engaged  in  interstate  commerce  or  in  the  service 
of  the  federal  government,  payment  of  the  tax  can  be  enforced 
by  restraining  it  from  doing  business  in  the  state  until  the  tax 
is  paid.2    In  the  case  of  an  individual  non-resident  there  is  how- 

s  See   supra,   §  §  8,   42,   43. 

*  Shaffer  v.  Carter,  252  U.  S.  37  (1920) ;  Travis  v.  Yale  &  Towne  Mfg. 
Co.,  252  U.  S.  60  (1920);  Underwood  Typewriter  Co.  v.  Chamberlain,  254  U.  S. 
113  (1920).  See  also  H.  P.  Hood  &  Sons  v.  Commonwealth,  235  Mass.  572 
(1920). 

5  Thus  a  state  statute  which  imposes  a  tax  on  all  income  of  residents, 
and  on  income  of  non-residents  earned  within  the  state,  and  allows  an  exemp- 
tion to  residents  but  not  to  non-residents  is  unconstitutional.  Travis  v.  Yale 
&  Towne  Mfg.  Co.,  252  U.  S.  60  (1920). 

6  Thus  in  Underwood  Typewriter  Co.  v.  Chamberlain,  254  U.  S.  113  (1920), 
a  state  statute  was  sustained  which  taxed  foreign  corporations  engaged  in 
selling  tangible  personal  property  upon  the  same  proportion  of  their  aggregate  net 
income  as  their  tangible  property  within  the  state  bore  to  their  aggregate 
tangible  property. 

1  Scollard  v.  American  Felt  Co.,  194  Mass.  127  (1907). 

2  Scollard  v.  American  Felt  Co.,  194  Mass.  127  (1907). 


86  Taxation   in    Massachusetts  [part  i 

ever  grave  doubt  whether  such  a  remedy  is  available.  At  any 
rate  it  appears  to  be  settled  that  a  tax  upon  a  non-resident  on 
account  of  his  property  within  a  state  cannot  be  made  a  per- 
sonal liability  against  him  but  may  be  enforced  only  against 
his  property  within  the  state.3  But  a  tax  upon  the  property 
of  a  non-resident  decedent  kept  within  the  state  may  be  proved 
as  a  claim  against  his  estate  in  the  state  in  which  the  property 
is  kept;4  and  a  state  may  constitutionally  impose  as  a  condition 
in  the  charter  of  a  corporation  that  the  tax  on  the  shares  owned 
by  non-resident  stockholders  shall  be  a  personal  liability.5  If 
a  resident  of  a  state  leaves  the  state  with  all  his  property  after 
the  assessment  of  a  tax  upon  him  he  cannot  be  sued  for  the 
amount  of  the  tax  in  the  state  to  which  he  has  gone;  for  tax 
laws  have  no  extra-territorial  effect,  and  the  courts  of  one  state 
will  not  enforce  the  revenue  laws  of  another  state.6 


THE   CONSTITUTION  OF   MASSACHUSETTS 

51.   The  Limitations  on  the  Taxing  Power  in  the 
Constitution  of  Massachusetts 

The  constitution  of  Massachusetts  contains  in  Part  II, 
Chapter  1,  Section  1,  Article  IV,  the  following  provision: 

And  further  full  power  and  authority  are  hereby  given  and  granted 
to  the  said  General  Court  ...  to  impose  and  levy  propor- 
tional and  reasonable  assessments,  rates  and  taxes  upon  all  the 
inhabitants  of,  and  persons  resident  and  estates  lying  within  the 
said  commonwealth;  and  also  to  impose  and  levy  reasonable  duties 
and  excises  upon  any  produce,  goods,  wares,  merchandise  and  com- 
modities, whatsoever,  brought  into,  produced,  manufactured  or  being 
within  the  same. 

The  charter  of  the  Massachusetts  Bay  Company  under  which 
the  colony  of  Massachusetts  Bay  was  administered  from  its 
first  settlement  until  the  revocation  of  the  charter  in  1691  did 
not  in  terms  grant  authority  to  the  company  to  levy  taxes  in 
the  territory  occupied  under  the  charter.    Authority  to  provide 

3  Dewey  v.  Des  Moines,  173  U.  S.  193  (1899). 

*  Bristol  v.  Washington  County,  177  U.  S.  133  (1900). 

5  Cony  v.  Baltimore,  196  U.  S.  466  (1905). 

6  Wisconsin  v.  Pelican  Insurance  Co.,  127  U.  S.  265  (1888). 


sect.  51]  The  Constitution  of  Massachusetts  87 

for  the  government  of  the  colony  was  however  granted  in  such 
broad  language  that  the  power  to  levy  taxes  was  included  by 
plain  implication,  and  as  early  as  1630  taxes  on  all  the  property 
in  the  colony  were  levied  by  the  court  of  assistants  for  general 
purposes.  Excises,  including  duties  on  imports,  were  also  im- 
posed during  the  colonial  period. 

The  province  charter  of  1691  gave  to  the  general  court  "full 
power  and  authority  to  impose  and  levy  proportionable  and 
reasonable  assessments,  rates  and  taxes,  upon  the  estates  and 
persons  of  all  and  every  the  proprietors  and  inhabitants  of  our 
said  province  and  territory."  The  direct  taxes  assessed  during 
this  period  seem  to  have  been  intended  to  be  proportional; 
that  is,  to  require  all  property  within  the  same  taxing  district 
to  pay  the  same  proportion  of  its  value,  and  to  authorize  only 
such  exemptions  as  were  based  on  public  service  or  inability  to 
pay.  Provisions  for  the  assessment  of  certain  articles  at  a  fixed 
value  seem  to  have  been  intended  rather  for  facilitating  the 
work  of  the  assessors  and  promoting  uniformity  than  as  a  par- 
tial exemption  of  such  property.1    In  spite  of  the  lack  of  specific 

1  The  history  of  taxation  in  Massachusetts  during  the  colonial  and  pro- 
vincial periods  shows  a  constant  effort  to  attain  a  system  of  equal  and  propor- 
tional taxation  without  attempting  to  tax  all  property  at  the  same  rate  re- 
gardless of  its  character.  Taxes  were  levied  as  early  as  1630,  but  until  1646 
no  provision  was  contained  in  the  annual  tax  acts  as  to  the  mode  or  basis  of 
assessment  other  than  directions  that  the  taxes  be  "equal  and  proportionable." 
In  1646  provision  was  made  for  the  assessment  of  live  stock,  then  the  most 
valuable  class  of  property  in  the  colony,  at  fixed  figures  for  each  kind  of 
animal.  All  other  property  real  and  personal  was  to  be  taxed  at  its  actual 
value.  This  method  of  taxation  continued  without  substantial  change  during 
the  whole  of  the  colonial  period,  except  that  in  1651  it  was  specifically  provided 
that  the  estate  of  merchants  and  traders  be  assessed  and  in  1682  the  taxation 
of  unimproved  land  at  a  fixed  rate  was  established. 

After  the  grant  of  the  province  charter  in  1692  the  general  court  ex- 
perimented with  various  forms  of  taxation.  There  was  first  enacted  a  tax  on 
all  property,  real  and  personal,  on  its  yearly  value  (St.  1692-3  c.  4).  This  did 
not  produce  the  desired  revenue  and  during  the  next  seven  years  various 
methods  of  taxation  were  experimented  with  among  them  a  tax  on  all  property 
at  its.  market  value  (St.  1696,  c.  3,  c.  16;  St.  1697,  c.  6,  c.  23),  which  apparently 
did  not  prove  satisfactory  for  it  was  abandoned  until  the  period  of  the  Revo- 
lution. In  1700  a  system  was  adopted  which  was  retained  with  minor  changes 
until  1777,  by  which  live  stock  was  assessed  at  fixed  valuations  as  per  schedule, 
other  personal  property  at  its  market  value,  and  real  estate  at  a  fixed  number 
of  times  its  rent  or  annual  value.  (St.  1699-1700  c.  27.)  The  only  material 
change  in  the  form  of  the  statute,  which  was  probably  only  declaratory  of 
the  existing  law,  came  in  1738  when  it  was  provided  that  the  income  or  profit 
which  any  person  should  receive  from  business  or  employment  "and  all  profits 
which  may  or  shall  arise  by  money  or  other  estate  not  particularly  other- 
wise assessed"  should  be  taxed  at  the  same  rate  as  other  personal  property 
(St.  1738-9  c.  1).  This  statute  apparently  required  the  taxation  of  money  at 
interest  upon  its  income  and  not  upon  its  capital  value. 


88  Taxation   in    Massachusetts  [part  i 

authority  excises  were  imposed  with  great  frequency  during  the 
whole  of  the  provincial  period. 

In  the  original  draft  of  the  constitution  of  the  common- 
wealth the  only  power  or  authority  relating  to  taxation  given 
to  the  general  court  was  a  clause  substantially  taken  from  the 
corresponding  clause  of  the  province  charter;  but  in  the  form 
finally  adopted  some  further  slight  verbal  modifications  were 
made  in  the  clause  relating  to  assessments,  rates  and  taxes  and 
the  subsequent  clause  relating  to  duties  and  excises  was  added. 
Since  the  adoption  of  the  constitution  no  change  has  been  made 
in  the  provisions  relating  to  taxation  except  the  amendment 
relating  to  forest  lands  adopted  in  19 12,2  the  income  tax  amend- 
ment adopted  in  1915 3  and  the  various  amendments  restricting 
or  extending  the  purposes  for  which  taxes  may  be  levied  set 
forth  in  another  section.4 

It  is  a  general  principle  of  constitutional  law  that  the  pro- 
visions of  a  written  constitution  are  not  grants  of  power  from 
the  people  to  the  government  but  are  limitations  upon  a  power 
which  would  otherwise  be  absolute,  and  consequently  no  act  of 
the  legislative  body  is  unconstitutional  unless  it  violates  some 
specific  provision  of  the  constitution.  Nevertheless,  although 
there  is  nothing  in  the  constitution  of  Massachusetts  ■  which 
in  terms  prohibits  taxes  that  are  disproportionate  or  excises  that 


During  the  first  two  years  under  the  Revolutionary  Government  the  pro- 
vincial tax  system  was  retained  except  that  income  from  money  at  interest 
and  "extraordinary"  occupational  incomes  were  assessed  at  three  times  their 
annual  amount.  (St.  1775-6,  c.  6;  1776-7,  c.  13.)  In  1777  however  the  classified 
system  of  taxation  was  abandoned,  probably  because  no  schedule  of  values 
could  keep  pace  with  the  rapid  changes  in  valuation  which  accompanied  the 
war,  and  provision  was  made  for  the  assessment  of  all  property,  real  and  per- 
sonal, at  its  "current  price"  (St.  1777-8,  c.  13).  Income  from  money  at  interest 
and  "extraordinary"  occupational  incomes  were  assessed  at  as  high  as  ten 
times  the  annual  amount  before  the  war  was  over,  apparently  in  an  attempt 
to  reach  what  we  would  now  call  excess  profits  due  to  war  conditions. 

The  first  tax  act  under  the  constitution  established  the  system  of  taxation 
prevalent  during  most  of  the  nineteenth  century.  That  is  a  tax  at  the  same 
rate  on  all  real  and  personal  estate,  at  its  market  value,  and  on  all  occupational 
incomes  at  their  actual  amount.  (St.  1780,  c.  43.)  In  the  following  year  how- 
ever it  was  provided  that  unimproved  real  estate  should  be  assessed  at  two 
per  cent  of  its  value  and  all  other  real  and  personal  estate  at  six  per  cent  of 
its  value;  and  this  discrimination  continued  until  1828  (St.  1828,  c.  143).  From 
1829  until  the  enactment  of  the  income  tax  act  in  1916  the  so-called  proportional 
system  of  taxation  remained  in  force. 

2  Infra,    G.    L.    c.    61. 

3  Infra,  G.  L.  c.  62. 

4  Infra,    §  61. 


sect.  52  J  The  Constitution  of  Massachusetts  89 

are  either  unreasonable  or  imposed  upon  subjects  other  than 
those  designated,  it  has  been  uniformly  held  that  the  clause  in 
question  was  intended  to  cover  the  whole  subject  of  taxation  and 
to  exclude  by  plain  implication  any  pecuniary  imposition  laid 
for  the  purpose  of  raising  revenue  for  public  uses  not  in  accord- 
ance with  its  provisions.5 

52.  Proportional  Taxation  under  the  Constitution  of 

Massachusetts 

In  spite  of  the  variety  of  methods  of  proportional  taxation 
that  were  practised  in  the  colonial  and  provincial  periods,  the  pro- 
vision in  the  constitution  of  Massachusetts  giving  authority  to 
the  legislature  to  levy  proportional  and  reasonable  taxes,  taken 
in  connection  with  the  subsequent  provision  that  "while  the  pub- 
lic charges  of  government  or  any  part  thereof  shall  be  assessed  on 
polls  and  estates  in  the  manner  that  has  been  hitherto  practised, 
in  order  that  such  assessments  may  be  made  with  equality  there 
shall  be  a  valuation  of  estates  within  the  commonwealth  taken 
anew  once  in  every  ten  years  at  least  and  as  much  oftener  as  the 
general  court  shall  order"  has  been  consistently  construed  by 
the  courts  as  establishing  the  principle  of  uniformity  of  taxation 
of  all  classes  of  taxable  property  and  as  requiring  that  all  property 
within  the  commonwealth  which  is  owned  and  held  in  such  a  way 
that  it  ought  to  be  available  to  its  owner  to  increase  his  ability 
or  enlarge  his  duty  to  assist  in  defraying  the  expenses  of  the 
government  must  be  included  in  the  aggregate  of  property 
upon  which  assessments  are  made *  and  that  all  such  property 

5  Portland  Bank  v.  Apthorp,  12  Mass.  252  (1815) ;  Commonwealth  v. 
People's  Five  Cent  Savings  Bank,  5  Allen  428  (1862);  Oliver  v.  Washington,, 
Mills,  11  Allen  268  (1865) ;  Dorgan  v.  Boston,  12  Allen  223  (1866) ;  Common- 
wealth v.  Hamilton  Manufacturing  Co.,  12  Allen  298  (1866) ;  Commonwealth 
v.  Provident  Institution  for  Savings,  12  Allen  312  (1866);  Providence  Institu- 
tion for  Savings  v.  Boston,  101  Mass.  575  (1869) ;  Cheshire  v.  Berkshire  County 
Commissioners,  118  Mass.  386  (1875);  Connecticut  Mutual  Life  Insurance  Co. 
v.  Commonwealth,  133  Mass.  161  (1882);  Gleason  v.  McKay,  134  Mass.  419 
(1883);  Northampton  v.  Hampshire  County  Commissioners,  145  Mass.  108 
(1887);  Minot  v.  Winthrop,  162  Mass.  113  (1894);  Day  v.  Lawrence,  167  Mass. 
371  (1897);  White  v.  Gove,  183  Mass.  333  (1903):  O'Keeffe  v.  Somerville,  190 
Mass.  110  (1906);  Opinion  of  the  Justices,  195  Mass.  607  (1908);  Opinion  of 
the  Justices,  196  Mass.  602  (1908) ;  Opinion  of  the  Justices,  208  Mass.  616  ' 
(1911);  Opinion  of  the  Justices,  220  Mass.  613  (1915);  Perkins  v.  Westwood, 
226  Mass.  268  (1917). 

1  Portland  Bank  v.  Apthorp.  12  Mass.  252  (1815);  Commonwealth  v. 
People's  Savings  Bank,  5  Allen  428,  431  (1862) ;,  Oliver  v.  Washington  Mills, 
11    Allen    268    (1865);    Commonwealth    v.    Hamilton    Manufacturing    Co.,    12 


90  Taxation   in    Massachusetts  [part  i 

in  a  given  taxing  district  must  be  assessed  at  the  same  rate.2 

In  other  words,  a  tax  is  proportional  within  the  meaning  of 
the  constitution  only  when  it  bears  the  same  ratio  to  the  whole 
sum  raised  by  taxation  as  the  taxpayer's  taxable  estate  bears 
to  the  whole  taxable  estate  within  the  taxing  district.3  Exact 
proportion  is  of  course  impossible,  but  the  aim  of  any  statute 
must  be  equality,  and  a  statute  which  tends  directly  and  nec- 
essarily to  produce  -disproportion  is  therefore  unconstitutional.4 
In  course  of  time  the  increasing  complexities  of  the  in- 
dustrial life  of  the  community  made  the  inflexible  rule  of  pro- 
portionality produce  extremely  disproportionate  and  unequal 
taxation,  and  various  measures  of  relief  were  suggested;5  but 
the  supreme  judicial  court  consistently  held  that  any  scheme 
of  taxation  which  aimed  at  equality  through  means  which  were 
not  proportional  was  not  valid  under  the  constitution.6  The 
only  relief  possible  was  through  amendments  to  the  constitution. 
Attempts  have  frequently  been  made  to  strike  out  the  word 
"proportional"  from  the  constitution,  but  as  yet  have  been  un- 
successful. In  1919  an  amendment  was  proposed  and  agreed  to 
by  the  legislature  which  authorized  the  levy  of  taxes  at  different 
rates  upon  different  classes  of  personal  property,  with  a  limita- 


Allen  298  (1866);  Connecticut  Insurance  Co.  v.  Commonwealth,  133  Mass.  161 
(1882);  Gleason  v.  McKay,  134  Mass.  419,  424  (1883);  Northampton  v.  Hamp- 
shire County  Commissioners,  145  Mass.  108  (1887);  Tremont  &  Suffolk  Mills 
v.  Lowell,  163  Mass.  283,  285  (1895);  Opinion  of  the  Justices,  195  Mass.  607 
(1908). 

2  For  this  reason  it  has  been  held  that  statutes  are  unconstitutional  which 
provide  that  all  reservoirs  and  dams  used  to  maintain  a  supply  of  water  for 
mill  purposes  shall  be  assessed  at  a  valuation  not  exceeding  that  of  land  of 
like   quality   in   the   immediate   vicinity,   Cheshire   v.   Berkshire    County   Com- 

%  missioners,  118  Mass.  386  (1875);  which  provide  a  uniform  tax  of  three  mills 
on  the  dollar  on  money,  debts,  bonds  and  stocks,  Opinion  of  the  Justices, 
195  Mass.  607  (1908);  which  provide  for  the  taxation  of  all  personal  property 
in  the  commonwealth  at  a  uniform  rate  while  real  estate  remains  taxable  at 
the  local  rate,  Opinion  of  the  Justices,  208  Mass.  616  (1911);  or  which  provide 
for  the  taxation  of  certain  classes  of  property  by  an  assessment  at  a  certain 
number  of  times  its  net  income,  Opinion  of  the  Justices,  220  Mass.  613,  622 
(1915).  On  the  other  hand  a  statute  providing  that  taxes  on  national  bank 
shares  owned  by  non-residents  of  the  state  should  be  turned  over  to  the 
commonwealth  and  that  the  assessors  should  omit  their  value  in  determining 
the  valuation  on  which  the  rate  of  taxation  is  based  is  constitutional,  Provi- 

'  dence  Institution  for  Savings  v.  Boston,  101   Mass.  575   (1869). 

3  Opinion  of  the  Justices,  220  Mass.  613,  621   (1915). 

4  Cheshire  v.  Berkshire  County  Commissioners,  118  Mass.  386  (1875). 

5  For  a  full  discussion  of  the  evils  of  the  proportional  system  of  taxation 
and  the  efforts  to  find  a  remedy  see  infra  pages  428  to  432  inc. 

6  Opinion  of  the  Justices,  220  Mass.  613,  621   (1915). 


sect.  53]  The  Constitution  of  Massachusetts  91 

tion  that  the  tax  upon  the  same  class  of  property  should  be 
uniform  throughout  the  commonwealth;  but  the  amendment 
was  defeated  in  the  following  year.  In  the  meantime  the  greater 
part  if  not  the  whole  of  the  needed  relief  was  secured  by  the 
adoption  of  the  Forty-first  Amendment 7  which  gave  the  legis- 
lature almost  unlimited  discretion  as  to  the  taxation  of  wild  or 
forest  lands,  and  the  Forty-fourth  Amendment 8  which  authorized 
the  levy  of  a  tax  upon  incomes  which  might  be  at  different  rates 
upon  income  derived  from  different  classes  of  property,  but 
was  required  to  be  levied  at  a  uniform  rate  throughout  the  com- 
monwealth upon  incomes  derived  from  the  same  class  of  prop- 
erty. By  authorizing  the  taxation  of  certain  classes  of  property 
upon  its  income  while  other  classes  of  property  are  taxed  upon 
their  capital  value  without  the  requirement  of  any  relationship 
between  the  burden  borne  by  the  different  classes  of  property 
thus  taxed,  the  Forty-fourth  Amendment  has  to  a  considerable 
extent  abrogated  the  requirement  of  proportionality,  but  only 
to  the  extent  expressly  stated  by  the  amendment.  The  power 
to  levy  an  income  tax  cannot  be  employed  either  openly  or 
covertly  as  an  instrument  to  narrow  or  circumvent  the  require- 
ment for  proportional  taxes  upon  all  property  other  than  in- 
comes.9 

It  is  not  necessary  in  order  to  meet  the  requirement  that 
taxes  shall  be  proportional  that  the  rate  shall  be  identical  in 
all  the  municipal  corporations  throughout  the  state;  uniformity 
in  each  city,  town  or  other  taxing  district  is  all  that  is  required.10 
As  the  constitution,  expressly  requires  the  taxation  of  all  persons 
and  property  within  the  state,  an  exception  in  favor  of  persons 
not  entitled  to  vote  cannot  be  implied.1 


11 


53.  Power  of  the  Legislature  to  Grant  Exemptions 

Since  the  requirement  of  proportionality  in  taxation  is  con- 
strued to  require  the  taxation  of  all  property  within  the  taxing 
district  which  is  held  in  such  a  way  that  it  ought  to  be  available 
to  its  owner  to  increase  his  ability  or  enlarge  his  duty  to  assist 
in  defraying  the  expenses  of  the  government,  the  legislature 

7  See  infra,  G.  L.  c.  61. 
*  See  infra,  G.  L.  c.  62. 

9  Duffy  v.  Treasurer  &  Receiver  General,  234  Mass.  42,  53  (1919). 

10  Providence  Institution  for  Savings  v.  Boston,  101  Mass.  575  (1869). 

11  Wheeler  v.  Wall,  6  Allen  558  (1863). 


92  Taxation   in    Massachusetts  [part  i 

has  no  power  to  grant  an  exemption  except  in  cases  in  which 
it  can  be  demonstrated  that  the  exemption  will  not  result  in 
the  disproportionate  taxation  of  other  property.  A  statute 
aimed  at  encouraging  a  particular  industry  by  relieving  it  in 
whole  or  in  part  from  taxation,  or  exempting  a  certain  class  of 
property  from  taxation  merely  as  a  matter  of  public  policy,  is 
not  constitutional  in  this  commonwealth.1 

While  the  courts  of  the  commonwealth  have  not  hesitated 
to  enforce  the  requirement  of  equality  and  proportion  in  tax- 
ation in  such  litigated  cases  as  have  come  before  them  and  to 
promulgate  it  when  their  opinion  has  been  asked  upon  the  con- 
stitutionality of  proposed  legislation,  it  must  be  admitted  that 
certain  exemption  laws  have  been  or  are  even  now  in  force 
which  are  inconsistent  with  the  doctrines  of  the  court  but  which 
if  obeyed  by  the  assessors  increased  the  burden  upon  owners 
of  other  property  in  such  a  trifling  degree  that  no  one  took 
it  upon  himself  to  question  the  constitutionality  of  the  exemp- 
tion. From  1790,  a  year  after  the  first  manufacturing  corpora- 
tion received  its  charter,  until  well  into  the  following  century, 
there  were  numerous  statutes  granting  exemptions  to  manu- 
facturing corporations.  In  1806  the  machinery  of  all  salt  works 
was  exempted,  and  this  exemption  continued  in  force  for  twenty 
years.  Although  the  requirement  of  proportion  was  carefully 
explained  by  the  supreme  judicial  court  in  1815,2  machinery 
in  cotton  and  woolen  manufactories  was  exempted  from  taxation 
in  1818,  and  such  machinery  and  sheep  as  well  continued  to 
be  exempt  for  ten  years.3  In  1821  young  domestic  animals  were 
exempted,4  and  this  exemption  is  still  in  force.5  In  1872  cities 
and  towns  were  authorized  to  exempt  from  taxation  for  a  period 
of  ten  years  property  used  exclusively  in  the  manufacture  of 
beet  sugar.6     In  1878  land  upon  which  certain  kinds  of  trees 

1  Cheshire  v.  Berkshire  County  Commissioners,  118  Mass.  386  (1875); 
Opinion  of  the  Justices,  195  Mass.  607  (1908).  The  limitation  upon  the  power 
of  the  legislature  to  grant  exemptions  depends  entirely  upon  the  specific  pro- 
vision of  the  Massachusetts  constitution.  There  is  nothing  in  the  Fourteenth 
Amendment  to  the  federal  constitution  which  prevents  each  state  from  adjust- 
ing its  system  of  taxation  as  it  sees  fit  as  long  as  there  is  no  mere  arbitrary 
discrimination.     Bell's  Gap  R.  R.  Co,  v.  Pennsylvania,  134  U.  S.  232   (1889). 

2  Portland  Bank  v.  Apthorp,  12  Mass.  252   (1815). 

3  These  exemptions  were  abolished  by  St.  1828,  c.  143. 

4  St.  1821,  c.  107,   §  2. 

6  G.  L.  c.  59  §  5  cl.  21,  infra. 

6  St.  1872,  c.  327.    This  statute  expired  by  its  own  limitation  in  1882. 


sect.  53]  The  Constitution  of  Massachusetts  93 

had  been  planted  was  given  a  limited  exemption,7  and  this  ex- 
emption remained  in  force  until  the  adoption  of  a  special  system 
for  the  taxation  of  forest  lands  under  the  Forty-first  Amendment.8 
Since  1894  domestic  fowls  of  a  limited  value  have  been  exempt 
from  taxation.9  There  are  doubtless  other  instances  in  which 
exemptions  have  been  granted  and  enjoyed  which  cannot  be  recon- 
ciled with  the  constitution  as  interpreted  by  the  courts. 

The  exemptions  which  the  legislature  may  constitutionally 
grant  fall  into  four  classes:  (1)  Property  of  persons  who  by 
reason  of  age,  infirmity  or  poverty  are  unable  to  contribute  fully 
toward  the  public  charges.  (2)  Property  of  insignificant  value 
and  of  such  a  character  that  it  may  be  supposed  to  be  owned 
by  everyone  alike.  It  is  for  this  reason  that  wearing  apparel, 
and  a  reasonable  amount  of  household  furniture  and  tools  may 
be  constitutionally  exempted.10  (3)  Property  devoted  to  a 
public  or  semi-public  use.  It  would  serve  no  useful  purpose 
to  tax  property  devoted  to  a  public  or  semi-public  use,  even 
if  owned  by  private  parties,  for  the  additional  burden  thereby 
caused  would  have  to  be  eventually  borne  by  the  public.  It 
is  for  this  reason  that  the  property  of  the  state  and  of  cities 
and  towns  and  of  public  service  corporations  and  of  charitable 
and  educational  institutions  may  be  exempted.11  (4)  Property 
taxed  directly  or  indirectly  in  some  other  way.  The  requirement 
of  proportionality  does  not  go  so  far  as  to  forbid  the  exemption 
from  direct  taxation  of  property  which  bears  its  just  burden 
of  taxation  through  some  other  form  of  tax.  Thus  the  legisla- 
ture is  not  bound  to  tax  a  corporation  for  its  property  and  the 
stockholders  for  their  shares;12  and  if  a  reasonable  excise  tax 
is  lawfully  imposed  upon  a  corporation,  according  to  the  amount 
of  its  property  or  business,  it  is  in  the  power  of  the  legislature, 
for  the  purpose  of  avoiding  double  taxation,   to  exempt  its 

7  St.  1878,  c.  131. 

8  G.  L.  c.  59  §  5  cl.  26;  c.  61,  infra  page  425. 

»  St.  1894,  c.  220  now  G.  L.  c.  59  §  5  cl.  21,  infra  page  211. 

10  Day  v.  Lawrence,  167  Mass.  371  (1897);  Opinion  of  the  Justices,  195 
Mass.  607  (1908). 

11  Opinion  of  the  Justices,  195  Mass.  607  (1908).  The  exemption  of  re- 
ligious institutions  is  hard  to  justify  on  strictly  legal  grounds,  although  the 
court  in  195  Mass.  608  based  it  upon  the  constitutional  provisions  recognizing 
the  importance  of  the  public  worship  of  God.  This  exemption  however,  like 
the  laws  requiring  the  observance  of  Sunday,  stands  on  too  firm  an  historical 
basis  to  be  shaken. 

12  Salem  Iron  Factory  v.  Danvers,  10  Mass.  514   (1813). 


94  Taxation   in    Massachusetts  [part  i 

property  held  and  used  in  the  business  for  which  the  excise 
tax  is  paid,  and  to  exempt  the  stockholders,  as  the  owners  of 
the  beneficial  interest  in  this  property,  from  liability  to  a  prop- 
erty tax  upon  it.13  Bonds,  notes  and  other  credits  may  be 
exempted  when  the  credits  are  secured  by  the  mortgage  or 
pledge  of  taxable  property,  and,  it  would  seem  to  follow,  when- 
ever the  debtor  has  taxable  property  available  for  payment.14 
The  constitutionality  of  an  exemption  granted  for  the  purpose 
of  avoiding  double  taxation  is  not  affected  by  the  fact  that  "one 
of  the  taxes  is  imposed  by  authority  of  another  state.15  Prob- 
ably the  legislature  could  go  as  far  as  to  exempt  property 
merely  because  it  was  taxed  in  some  other  form  by  authority 
of  another  jurisdiction,  as  stock  in  a  foreign  corporation  owned 
by  residents  of  this  commonwealth  when  the  property  of  the 
corporation  was  taxed  in  other  states  in  which  it  was  located.10 
Even  if  there  is  a  right  to  exempt  this  class  of  property  wholly 
from  taxation,  a  partial  exemption  conditional  upon  the  property 
exempted  contributing  an  arbitrary  and  disproportion al  per- 
centage of  its  value  is  not  constitutional.17 

If  an  exemption  is  one  which  the  legislature  may  consti- 
tutionally grant,  there  is  no  requirement  that  it  be  granted  with 
uniformity,  and  the  legislature  may  establish  such  exceptions 
from  an  exemption  law  as  it  sees  fit,  provided  they  rest  upon 
some  conceivably  rational  basis  and  are  not  wholly  arbitrary  and 
discriminatory.18 

54.   Excises  under  the  Constitution  of  Massachusetts 

Duties  and  excises  are  divided  naturally  into  two  classes, 
namely  those  laid  on  the  importation  of  foreign  goods  and  those 
laid  on  domestic  goods,  privileges  or  transactions.  Duties  of 
the  former  class  were  introduced  into  England  in  the  time  of 
James  I,  but  those  of  the  latter  did  not  appear  in  that  country 
until  1643.  Numerous  statutes  imposing  duties  and  excises 
of  both  classes  were  enacted  in  Massachusetts  during  the  colonial 

13  Commonwealth  v.  People's  Five  Cents  Savings  Bank,  5  Allen  428,  437 
(1862);  Opinion  of  the  Justices,  195  Mass.  607,  611   (1908). 

14  Williams  v.  Brookline,  194  Mass.  44,  46  (1907). 

15  Opinion  of  the  Justices,  195  Mass.  607,  615  (1908). 

16  See  Opinion  of  the  Justices,  220  Mass.  613,  625  (1915). 

17  Opinion  of  the  Justices,  220  Mass.  613,  626  (1915). 

18  Massachusetts  General  Hospital  v.  Belmont.  233  Mass.  190  (1919); 
Mass.  (1921) 


sect.  54]  The  Constitution  of  Massachusetts  95 

period.  The  first  of  such  statutes  imposed  small  excises  on 
wines  and  strong  waters,  which  were  gradually  increased  in 
amount  and  extended  to  other  articles.  A  tonnage  tax  was  also 
enacted.  In  April  1668  an  excise  was  imposed  upon  "all  cyder, 
rum,  ale  and  beer  sold  in  publick  houses"  licensed  to  sell  such 
articles.  In  1670  a  duty  was  laid  on  all  goods,  wares  and  mer- 
chandise with  certain  exceptions  imported  from  any  foreign 
port  or  other  jurisdiction  of  one  penny  for  every  twenty  shillings 
value.  In  1680  a  duty  was  laid  on  cattle  brought  in  from  other 
colonies.1 

Under  the  provincial  charter,  although  no  authority  was 
given  in  terms  to  impose  duties  and  excises,  the  general  court 
enacted  numerous  statutes  providing  for  taxes  of  this  class. 
These  excises  were  "granted"  as  in  England,  for  a  fixed  period, 
usually  of  one  year.  Statutes  imposing  duties  on  imports  were 
enacted  every  year,  and  such  duties  formed  an  important  source 
of  income  for  the  provincial  government ;  but  excises  on  domes- 
tic transactions  were  also  frequently  laid.  At  first  these  excises 
were  chiefly  on  the  sale  of  wines  or  distilled  liquors  at  retail, 
or  on  the  brewing  of  beer  and  ale  and  the  distillation  of  liquors,2 
but  in  1737  an  excise  on  the  use  of  carriages  was  imposed  3  and 
in  1750  an  excise  upon  the  sale  at  retail  of  tea,  coffee,  arrack, 
snuff  and  china-ware.4  In  1755  a  stamp  tax  upon  writs,  legal 
papers  and  newspapers  was  enacted.5 

During  the  first  eight  years  under  the  constitution  of  Mass- 
achusetts the  state  had  and  exercised  the  power  of  laying  duties 
on  imports,6  but  upon  the  adoption  of  the  constitution  of  the 
United  States  this  power  passed  to  Congress,  leaving  in  the 
state  the  power  concurrently  with  Congress  of  laying  excises 
on  domestic  transactions.  During  the  war  of  the  Revolution 
excises  had  been  laid  by  the  state  with  great  freedom,  not  only 
upon  the  sale  of  liquors  and  tea  and  the  use  of  carriages,  but 
upon  articles  of  various  kinds  manufactured  within  the  state 

1  Anc.  Chart.  130. 

2  St.  1692-93,  c  5,  §  7  (sale  of  liquors  at  retail) ;  St.  1702,  c.  7,  §  4 
(brewing  of  beer  and  ale,  distilling  spirits  or  strong  liquors) ;  St.  1715-16  c. 
9  (keepers  of  coffee-houses,  innholders  and  retailers  of  wines  and  liquors) ; 
St.  1737-38.  c.   1,   §  1    (lemons  and   limes  used  in  making  punch) 

3  St.  1737-38,  c.  1,  §  15;  St    1749-50,  c.  21,  §9. 

4  St.  1749-50,  c  21. 
6  St.  1754-55.  c.  18. 

e  St.  1782,  c.  33;  St.  1783.  c.  12. 


96  Taxation   in    Massachusetts  [part  i 

such  as  clocks  and  watches  and  sugar,  and  upon  sales  at  auc- 
tion.7 After  the  war  was  over  and  the  financial  strain  on  the  state 
grew  less  the  only  excises  retained  were  those  upon  tavern  keep- 
ers, retailers  of  liquor  and  sales  at  auction.8  The  occupation 
of  tavern  keeper  and  the  selling  of  intoxicating  liquors  has  been 
subjected  to  regulation,  and  when  not  wholly  prohibited,  to 
the  payment  of  fees  down  to  the  present  time;9  but  the  license 
fee,  although  it  yielded  a  considerable  revenue,  came  to  be 
looked  upon  as  an  incident  of  regulation,  and  was  imposed  as 
an  exercise  of  the  police  power  rather  than  of  the  power  of  tax- 
ation. Sales  at  auction  were  taxed  amounts  varying  from  one 
per  cent  to  one  tenth  of  one  per  cent  of  the  value  of  the  goods 
sold,  the  last  named  being  the  tax  on  the  sale  of  municipal 
bonds  and  shares  in  domestic  corporations.10  The  tax  on  sales 
by  auction  was  abolished  in  1849.11  In  1812  an  excise  on  the 
franchise  of  banking  corporations  was  imposed  of  one  half  of 
one  per  cent  of  the  capital  stock,12  and  this  tax  remained  until 
the  state  banks  were  driven  out  of  existence  during  the  civil 
war  to  make  way  for  the  national  banks.  Insurance  companies 
were  first  taxed  on  their  business  in  I860.13  Savings  banks  were 
subjected  to  a  franchise  tax  in  1862  14  and  business  corporations 
generally  in  1864. 15  Foreign  telegraph  companies  were  sub- 
jected to  an  excise  tax  in  1864  ;16  ships  engaged  in  the  foreign 
carrying  trade  in  1881  ;17  and  trust  companies  in  1888.18  The 
inheritance  tax  first  appeared  on  the  statute  books  of  this  com- 
monwealth in  18 9 1.19  In  1898  a  special  excise  tax  was  imposed 
on  street  railway  companies  20  and  in  1902  on  corporations  own- 

7  St.  1781,  c.  17;  St.  1782,  c.  33;  St.  1783,  c.  12;  St.  1789,  c.  48. 

8  Portland  Bank  v.  Apthorp,  12  Mass.  252  (1815). 

9  G.  L.  c.  138  §21. 

10  R.  S.   c.  9,   §  5. 

11  The  tax  on  sales  by  auction  was  restricted  by  St.  1839,  c.  Ill,  and 
St.  1843,  c.  21.  By  St.  1849,  c.  138,  it  was  repealed  so  far  as  it  applied  to  sales 
of  goods  manufactured  in  the  United  States;  and  the  statute  as  it  remained 
being  a  discriminatory  excise  on  the  sale  of  imported  goods  was  clearly  un- 
constitutional. Supra  §  13.  For  the  existing  statutes  in  regard  to  auctioneers' 
licenses,    see    G.    L.    c.    100    §  2. 

12  St.  1812,  c.  32. 

13  G.  S.  c.  58,  §  64.  See  St.  1860,  c.  178  and  G.  L.  c.  63  §  §  20-29,  inc.  infra 
page  521. 

14  St.  1862,  c.  224.    See  G.  L.  c.  63  §§  11-16  inc.  infra  page  515. 

15  St.  1864,  c.  208.    See  G.  L.  c.  63  §  30,  infra  page  529. 

16  St.  1864,  c.  208.     See  G    L    c  59  §  8   infra  page  220. 

17  St.  1881,  c.  284.    See  G    L.  c   6S  §  67.  infra  page  589. 

18  St.  1888,  c.  413.    See  G.  L.  c.  63  §  §  53.  56,  infra  pages  574,  579. 

19  St.  1891,  c.  425.  See  G.  L.  c.  65,  infra  page  605. 

20  St.  1898,  c.  578.    See  G.  L.  c.  63  §§  61-66  inc.,  infra  page  584. 


sect.  55]  The  Constitution  of  Massachusetts  97 

ing  ships  engaged  in  the  foreign  carrying  trade.21  In  1903  for- 
eign business  corporations  were  first  subjected  to  an  excise  tax,22 
and  in  1907  an  excise  was  imposed  on  express  companies.-3  In 
1914  the  stock  transfer  tax  was  established.24  Four  other  stat- 
utes imposing  excises  have  been  held  unconstitutional,25  and  in 
addition  to  the  excises  already  mentioned  there  are  a  large 
number  of  statutes  imposing  license  fees  upon  various  acts 
and  occupations;  but  as  the  primary  purpose  in  each  case  is 
regulation  such  statutes  are  not  an  exercise  of  the  power  of 
taxation.26 

The  power  to  lay  excises  in  this  commonwealth  is  subject 
to  two  limitations  by  the  constitutional  provision  already 
quoted,27  namely  (1)  excises  may  be  imposed  only  upon  prod- 
uce, goods,  wares,  merchandise  and  commodities,  (2)  excises 
must  be  reasonable. 

55.   What  Constitutes  a  Commodity 

Much  of  the  discussion  over  the  power  of  the  legislature 
to  levy  excises  has  turned  upon  the  meaning  of  the  word  "com- 
modity" in  the  Massachusetts  constitution.  The  word  "com- 
modity" in  a  special  sense  signifies  an  article  of  trade  or  com- 
merce, but  in  a  general  sense  denotes  a  privilege,  convenience, 
advantage,  benefit  or  profit.  It  was  early  held  that  "commodity" 
was  to  be  taken  in  its  general  sense  in  the  clause  of  the  consti- 
tution relating  to  taxation,  and  consequently  that  it  was  within 
the  power  of  the  legislature  to  lay  an  excise  upon  a  franchise 
derived  from  the  state.1     This  interpretation  has  never  been 

21  St.  1902,  c.  374.  ■  See  G.  L.  c.  63  §  67,  infra,  page  589. 

22  St.  1903,  c.  437,  §  75.    See  G.  L.  c.  63  §  §  39-43  inc.  injra,  page  560. 

23  St.  1907,  c.  580,  repealed  by  St.  1918  c.  257  §  77. 

24  St.  1914,  c.  770.    See  G.  L.  c.  64,  infra,  page  600. 

25  St.  1863,  c.  236,  imposing  a  tax  upon  dividends  paid  to  non-resident 
stockholders  was  held  unconstitutional  in  Oliver  v.  Washington  Mills,  11  Allen 
268  (1865);  St.  1878,  c.  275,  subjecting  partnerships  the  interests  in  which  were 
transferable  without  the  assent  of  the  partners  to  the  corporate  franchise  tax 
was  held  unconstitutional  in  Gleason  v.  McKay,  134  Mass.  419  (1883) ;  St.  1904, 
c.  403,  imposing  an  excise  on  the  business  of  giving  trading  stamps  in  connec- 
tion with  the  sale  of  other  articles  was  held  unconstitutional  in  O'Keeffe  v. 
Somerville,  190  Mass.  110  (1906);  St.  1914,  c.  761,  imposing  an  excise  on  the 
privilege  of  registering  bonds  and  thereby  rendering  them  tax  exempt  was 
held  unconstitutional  in  Perkins  v.  Westwood,  226  Mass.  268  (1917). 

26  Supra  §  4.  For  the  present  statutes  relating  to  licenses  and  license 
fees  from  which  any  substantial  revenue  is  intended  to  be  derived  see  G.  L.  c. 
138,  c.  140. 

27  Supra,  §  51. 

1  Portland  Bank  v.  Apthorp,  12  Mass.  252  (1815). 


98  Taxation   in   Massachusetts  [part  i 

questioned  and  it  has  been  held  in  numerous  cases  that  it  is 
competent  for  the  legislature  to  lay  an  excise  upon  the  fran- 
chise of  a  domestic  corporation  2  or  upon  the  privilege  of  a 
foreign  corporation  to  do  business  in  this  commonwealth.3 

While  it  is  conceded  that  the  legislature  cannot  constitu- 
tionally evade  the  limitations  upon  the  taxation  of  property 
by  imposing  an  excise  upon  the  privilege  of  holding  property,4 
it  has  been  earnestly  contended  that  the  power  of  levying 
excises  of  all  sorts  as  it  was  exercised  in  England  and  in  Massa- 
chusetts during  the  provincial  period  was  given  to  the  general 
court  by  the  constitution  subject  only  to  the  limitation  of 
reasonableness,  and  this  view  has  been  expressed  obiter  in  the 
decisions  of  the  supreme  judicial  court  in  litigated  cases5  and 
by  three  of  the  members  of  the  court  in  an  opinion  to  the 
legislature.6  The  view  of  the  majority  however,  supported  by 
actual  decisions  of  the  court,  is  that  the  enumeration  of  the 
permissible  subjects  of  excise  in  the  constitution  creates  a  real 
limitation  and  that  the  meaning  of  "commodity"  is  confined  to 
such  undertakings  as  one  may  not  lawfully  follow  in  the  exer- 
cise of  a  natural  right  without  aid  from  the  government  and 
without  affecting  the  rights  or  interests  of  others  in  such  a  way 
as  properly  to  call  for  governmental  regulation;  and  that  conse- 
quently the  legislature  cannot  constitutionally  lay  an  excise 
upon  such  natural  rights  as  the  performance  of  simple  labor 
or  the  making  of  simple  contracts.7  Applying  this  principle  it 
has  been  held  that  the  right  to  do  business  by  means  of  a 

2  Commonwealth  v.  People's  Five-Cents  Savings  Bank,  5  Allen  428  (1862)  ; 
Commonwealth  v.  Lowell  Gas  Light  Co.,  12  Allen  75  (1866);  Commonwealth 
v.  Hamilton  Manufacturing  Co.,  12  Allen  298  (1866) ;  Commonwealth  v.  Provi- 
dent Institution  for  Savings,  12  Allen  312  (1866);  Manufacturers'  Insurance 
Co.  v.  Loud,  99  Mass.  146  (1868);  Commonwealth  v.  Lancaster  Savings  Bank, 
123  Mass.  493  (1878);  Commonwealth  v.  Barnstable  Savings  Bank,  126  Mass. 
526  (1879). 

3  Attorney-General  v.  Bay  State  Mining  Co.,  99  Mass.  148  (1868) ;  Connecti- 
cut Mutual  Life  Insurance  Co.  v.  Commonwealth,  133  Mass.  161  (1882); 
Attorney-General  v.  Electric  Storage  Battery  Co.,  188  Mass.  239  (1905);  Baltic 
Mining  Co.  v.  Commonwealth,  207  Mass.  381  (1911).  As  to  corporations  en- 
gaged in  interstate  commerce  see  supra,  §  23. 

4  Opinion  of  the  Justices,  208  Mass.  616  (1911) ;  Opinion  of  the  Justices, 
220  Mass.  613  (1915). 

5  Portland  Bank  v.  Apthorp,  12  Mass.  252  (1815) ;  Minot  v.  Winthrop, 
162  Mass.  113  (1894). 

6  See  the  opinions  of  Hammond,  Loring  and  Sheldon,  JJ.,  •  in  Opinion  of 
the  Justices,  196  Mass.  602  (1908). 

7  See  the  majority  opinions  in  the  above  (see  also  note  11,  infra)  and  the 
cases  cited  in  the  two  following  notes. 


sect.  56  J  The  Constitution  of  Massachusetts  99 

partnership  in  which  the  interest  of  each  partner  is  transferable 
without  the  consent  of  the  others8  and  the  right  to  sell  goods 
with  the  accompaniment  of  trading  stamps 9  cannot  be  the  sub- 
ject of  excise;  but  an  inheritance  tax,10  a  tax  on  the  sale  of 
corporate  stock,  foreign  or  domestic,  and  a  tax  on  the  privilege 
of  doing  business  by  means  of  an  unincorporated  association 
arising  above  the  level  of  a  simple  partnership  with  transferable 
shares  1X  are  valid  excises  on  commodities. 

It  has  also  been  held  that  as  an  act  of  justice  is  not  a  matter 
of  barter,  the  privilege  of  obtaining  an  exemption  from  direct 
taxation  for  bonds  secured  by  property  which  is  itself  taxed  can- 
not be  made  the  subject  of  an  excise.12 

56.   Reasonableness  of  Excises 

An  excise  need  not  be  proportional,  but  it  must  be  reasonable. 
The  power  to  determine  what  callings,  franchises  or  privileges 
shall  be  subjected  to  an  excise  and  the  amount  of  such  excise  be- 
longs primarily  to  the  legislature.  The  provision  that  it  must 
be  reasonable  was  not  designed  to  give  to  the  judicial  department 
the  right  to  revise  the  decisions  of  the  legislature  as  to  the  policy 
and  expediency  of  an  excise.1  The  court  cannot  declare  an  excise 
invalid  as  unreasonable  unless  it  is  plainly  and  grossly  oppres- 

8  Gleason  v.  McKay,  134  Mass.  419  (1883). 
8  O'Keeffe  v.  Somerville,  190  Mass.  110  (1906). 

10  Minot  v.  Winthrop,  162  Mass.  113  (1894);  Minot  v.  Treasurer  and 
Receiver-General,   207    Mass.   588    (1911). 

11  Opinion  of  the  Justices,  196  Mass.  602  (1908).  Held  by  all  the  justices 
that  a  tax  on  the  sales  of  shares  or  stock  certificates  can  be  sustained  only  as  a 
duty  or  excise  and  such  a  tax  can  be  imposed  upon  the  sale  of  shares  of 
corporations.  Held  by  Hammond,  Loring  and  Sheldon,  JJ.,  that  it  can  be  im- 
posed upon  the  sale  of  shares  in  unincorporated  associations,  because  the  con- 
stitution gave  power  to  exercise  every  part  of  the  system  of  taxation  which 
had  theretofore  been  exercised  in  England  and  in  the  province  of  Massachusetts 
Bay;  and  that  power  includes  the  right  to  tax  a  privilege  which  is  the 
exercise  of  a  natural  right,  provided  the  tax  is  reasonable.  Held  by  Rugg,  J., 
that  the  sale  of  such  shares  can  be  taxed  because  the  device  of  voluntary 
unincorporated  associations  with  transferable  shares  is  not  a  natural  right.  Held 
by  Knowlton,  C.  J.,  and  Morton  and  Braley,  JJ.,  that  the  sale  of  such  shares 
is  a  natural  right  and  untaxable  and  that  a  distinction  between  such  associations 
and  ordinary  partnerships  is  based  on  an  immaterial  fact.  See  also  Oliver  v. 
Liverpool  &  London  Life  and  Fire  Insurance  Co.,  100  Mass.  531  (1868),  and 
G.  L.  c.  63  §  §  22,  23,  infra  page  524,  as  to  the  right  to  lay  an  excise  on  an  unin- 
corporated company. 

12  Opinion  of  the  Justices,  220  Mass.  613  (1915) ;  Perkins  v.  Westwood, 
226  Mass.  268  (1917). 

1  Connecticut  Mutual  Life  Insurance  Co.  v.  Commonwealth,  133  Mass. 
161  (1882);  Minot  v.  Winthrop,  162  Mass.  113,  123  (1894). 


100  Taxation   in   Massachusetts  [part  i 

sive  or  unequal  in  its  effect  upon  persons  similarly  situated. 
Discriminations  and  distinctions  between  different  privileges  and 
occupations  are  permissible,  but  a  discrimination  between  differ- 
ent exercises  of  the  same  privilege  or  occupation  must  have  some 
conceivably  rational  basis  and  not  be  purely  arbitrary  or  founded 
upon  an  immaterial  fact.2 

As  far  as  the  amount  of  the  tax  is  concerned,  an  excise  can- 
not be  grossly  oppressive  or  contrary  to  common  right,  but  if 
the  legislature  has  the  power  to  withhold  the  privilege  alto- 
gether it  may  put  any  price  it  wishes  upon  its  exercise,  and  one 
who  voluntarily  assumes  the  benefit  cannot  complain  of  the 
burden;  if  however  the  privilege  is  one  the  exercise  of  which 
may  be  regulated  but  not  forbidden  altogether  the  legislature 
may  not  under  the  guise  of  taxation  impose  such  a  severe  burden 
as  to  substantially  amount  to  prohibition.3  It  would  not  be 
reasonable  to  impose  an  excise  arbitrarily  irrespective  of  the 
benefit  which  the  privilege  taxed  conferred  and  some  method 
must  be  resorted  to  in  order  to  ascertain  a  fair  and  just  basis  on 
which  to  calculate  the  amount  of  the  tax,  so  that  there  may  be 
some  proportion  between  the  benefits  received  and  the  sum  paid 
for  their  enjoyment.4  The  usual  method  is  to  proportion  the 
excise  to  the  value  of  the  property  to  which  the  privilege  taxed 
relates;  and  such  a  method  is  not  unreasonable  even  when  the 
property  itself  is  exempt  from  taxation.5 

57.   Money  Bills 

Part  II,  Chapter  I,  Section  III,  Article  VI  of  the  constitu- 
tion of  Massachusetts  reads  as  follows: 

All  money  bills  shall  originate  in  the  House  of  Representatives; 
but  the  Senate  may  propose  or  concur  with  amendments,  as  on  other 
bills. 

This  provision  of  the  constitution  was  intended  to  establish 
in  this  commonwealth  the  practice  under  the  British  constitu- 

2  Portland  Bank  v.  Apthorp,  12  Mass.  252,  258  (1815) ;  Oliver  v.  Washing- 
ton Mills,  11  Allen  268  (1865);  Minot  v.  Winthrop,  162  Mass.  113,  123  (1894); 
O'Keeffe  v.  Somerville,  190  Mass.  110  (1906) ;  Opinion  of  the  Justices,  196  Mass. 
602  (1908);  American  Uniform  Co.  Inc.  v.  Commonwealth.  237  Mass.  42  (1921). 

3  Minot  v.  Winthrop,  162  Mass.  113  (1894);  American  Uniform  Co.  Inc. 
v.  Commonwealth,  237  Mass.  42   (1921). 

4  Commonwealth  v.  Provident  Institution  for  Savings,  12  Allen  312  (1866). 

5  G.  L.  c.  63  §  30,  Development  of  the  Franchise  Tax,  infra  page  531. 


sect.  58]     Purposes  for  which  Taxes  can  be  Levied  101 

tion  by  which  money  bills  are  required  to  originate  in  the  House 
of  Commons.  It  has  been  held  that  the  exclusive  constitutional 
privilege  of  the  House  of  Representatives  to  originate  money 
bills  is  limited  to  bills  that  provide  for  the  levy  of  a  tax  and  thus 
transfer  money  from  the  people  to  the  state,  and  does  not  in- 
clude bills  that  appropriate  money  from  the  treasury  for  par- 
ticular public  uses.1  It  has  also  been  held  that  the  Senate  has  an 
equal  right  with  the  House  of  Representatives  to  originate  an 
inquiry  into  the  returns  of  taxable  property  made  by  the  towns 
for  the  purpose  of  determining  the  proportionate  share  of  each 
town  in  the  state  tax.2 

A  provision  very  similar  to  the  one  now  under  consideration 
is  found  in  the  constitution  of  the  United  States,3  and  while  it 
is  applicable  only  to  Congress,  its  interpretation  throws  some 
further  light  on  the  meaning  of  the  corresponding  clause  in  the 
constitution  of  Massachusetts.  It  has  been  held  that  the  pro- 
vision in  the  federal  constitution  applies  only  to  acts  that  levy 
taxes  in  the  strict  sense  of  the  word,  and  not  to  acts  for  other  pur- 
poses which  may  incidentally  create  revenue.4  Under  the  prac- 
tice in  Great  Britain,  the  House  of  Lords  has  no  power  to  amend 
a  money  bill,  but  must  concur  with  or  reject  it  as  it  stands; 
whereas  under  both  the  federal  and  state  constitutions  the  Sen- 
ate may  propose  or  concur  with  amendments.  It  has  been  held 
that  under  the  federal  constitution  a  general  revenue  bill  origi- 
nating in  the  House  of  Representatives  may  be  subjected  in  the 
Senate  to  such  a  radical  amendment  as  striking  out  a  provision 
for  the  levy  of  an  inheritance  tax  and  substituting  a  tax  on  the 
income  of  corporations.5 


THE  PURPOSES  FOR  WHICH  TAXES   CAN   BE 

LEVIED 

68.  Taxes  can  be  Levied  only  for  the  Public  Use 

The  principle  that  money  cannot  be  raised  under  the  form 
of  taxation  to  be  devoted  to  a  use  not  public  is  expressed  in 

1  Opinion  of  the  Justices,  126  Mass.  557   (1878). 
-  Opinion  of  the  Justices,  126  Mass.  547  (1781). 
3  Article  1,  Section  7,  Clause  1. 

*  Twin  City  Bank  v.  Nebeker,  167  U.  S.  196   (1897) ;   Millard  v.  Roberts, 
202  U.  S.  429  (1906). 

5  Flint  v.  Stone  Tracy  Co.,  220  U.  S.  107,  143  (1911). 


102  Taxation    in    Massachusetts  [part  i 

various  ways  in  the  constitution  of  Massachusetts,1  and  indeed 
may  be  said  to  follow  from  the  existence  of  the  restrictions  upon 
the  power  of  taxation  which  are  found  in  the  grant  of  that 
power  to  the  legislature,  a  grant  of  power  which  is  intended  to 
cover  the  whole  subject  of  legislation  for  the  purpose  of  revenue 
and  to  exclude  any  arbitrary  imposition  which  could  not  rightly 
be  dignified  by  the  name  of  tax.  The  power  to  levy  taxes  is 
founded  on  the  right,  duty  and  responsibility  of  maintaining 
and  administering  the  governmental  functions  of  the  state  and 
of  providing  for  the  public  welfare.  To  justify  any  exercise  of 
the  power  requires  that  the  expenditure  which  it  is  intended 
to  meet  shall  be  for  some  public  service  or  some  object  which 
concerns  the  public  welfare.  The  promotion  of  the  interests 
of  individuals,  and  the  incidental  benefit  to  the  public  which 
may  result  from  their  prosperity,  does  not  justify  the  grant  to 
them  of  public  money  raised  by  taxation  to  enable  them  either 
to  use  their  property  or  to  carry  on  their  business  to  better  ad- 
vantage.2 

While  the  principle  itself  is  easily  expressed  and  understood, 
its  application  is  often  very  difficult.  The  test  of  a  public  use 
for  the  purpose  of  taxation  is,  however,  much  the  same  as  that 
employed  in  ascertaining  proper  subjects  for  the  power  of  em- 
inent domain,3  so  that  considerable  help  can  be  derived  from 
the  decisions  which  determine  whether  a  use  is  sufficiently  pub- 
lic to  justify-  the  exercise  of  eminent  domain  upon  its  behalf.4 

1  It  is  said  in  Lowell  v.  Boston,  111  Mass.  454  (1873),  that  the  limitation 
is  expressed  in  Article  XI  of  Chapter  2,  Sec.  1,  by  restricting  the  issuing  of 
moneys  from  the  treasury  to  purposes  of  "the  necessaiy  defence  and  support 
of  the  commonwealth;  and  for  the  protection  and  preservation  of  the  inhabi- 
tants thereof,"  and  in  Article  IV  of  Chapter  1,  Sec.  i  by  declaring  the  purposes 
for  which  the  power  of  taxation  may  be  exercised  to  be  "for  the  public  service, 
in  the  necessary  defence  and  support  of  the  government  of  the  said  common- 
wealth and  the  protection  and  preservation  of  the  subjects  thereof"  and  in 
the  general  provisions  of  Article  X  of  the  Declaration  of  Rights.  Taxation 
for  a  use  not  public  is  also  a  deprivation  of  property  without  due  process  of 
law,  in  violation  of  the  Fourteenth  Amendment  to  the  constitution  of  the 
United  States.  Loan  Association  v.  Topeka,  20  Wall.  655  (1874);  Cole  v. 
LaGrange,  113  U.  S.  1  (1884);  Green  v.  Frazier,  253  U.  S.  233  (1920). 

2  Lowell  v.  Boston,  111  Mass.  454  (1873). 

3  Lowell  v.  Boston,  111  Mass.  454,  462  (1873). 

4  The  following  uses  have  been  held  public  in  this  commonwealth  so  far 
as  to  justify  the  exercise  of  the  power  of  eminent  domain.  Highways,  though 
laid  out  for  pleasure  travel  only,  Higginson  v.  Nahant,  11  Allen  530  (1866),  or 
to  reach  the  house  of  a  single  inhabitant,  Denham  v.  Bristol  County  Com- 
missioners, 108  Mass.  202  (1871),  or  to  open  up  a  single  tract  of  land,  Wheel- 
wright v.  Boston,  188  Mass.  521  (1905);  but  not  purely  private  ways,  Flagg  v. 


sect.  59]      Purposes  for  which  Taxes  can  be  Levied  103 

In  many  instances  the  purpose  for  which  it  is  proposed  to 
expend  the  public  funds  is  both  public  and  private.  In  such  a 
case,  if  the  dominating  motive  for  the  expenditure  of  the  money 
is  a  purely  public  one,  then  the  expenditure  is  legal,  although 
the  expenditure  may  result  in  the  acquisition  of  property  by 
the  public  authorities  which  may  be  incidentally  devoted  at 
certain  times  to  uses  which  are  not  public.5  If  however  the 
project  is  merely  colorable,  masking  under  the  pretext  of  a  pub- 
lic purpose  a  design  to  embark  the  public  upon  a  private  en- 
terprise, such  an  attempt  would  be  a  perversion  of  power  and 
no  public  funds  could  be  appropriated  for  it.6 

A  use  is  not  necessarily  private  because  the  expense  is  in 
part  met  by  individuals.  There  is  no  rule  that  the  expense  of 
a  particular  undertaking  must  be  borne  either  wholly  by  the 
public  or  wholly  by  private  parties.  Instances  are  not  uncom- 
mon in  which  part  of  the  cost  of  a  public  improvement  is  met 
by  special  assessments  and  part  by  general  taxation,  or  in  which 
the  public  pays  a  fee  for  the  use  of  a  public  utility  only  partly 
sufficient  to  bear  the  expense  of  maintenance.  A  contribution 
of  part  of  the  cost  of  maintaining  a  public  utility  which  the 
state  might  constitutionally  operate  at  its  own  expense  is  equally 
unobjectionable.7 

59.  What  Constitutes  the  Public  Use 

The  power  of  the  state  to  authorize  the  levy  of  taxes  to 
raise  money  for  the  erection  of  public  buildings,  such  as  a  state 
house,  court  house  or  town  hall,  is  of  course  unquestioned.1 

Flagg,  16  Gay  175  (1860).  Railroads,  Boston  Water  Power  Co.  v.  Boston  & 
Worcester  R  R.  Co.,  23  Pick.  360  (1839),  even  a  private  railway,  White  v. 
Blanchard  Bros.  Granite  Co.,  178  Mass.  363  (1901),  and  canals,  Hazen  v.  Essex 
Co.,  12  Cush.  475  (1853).  Parks,  Holt  v.  City  Council  of  Somerville,  127  Mass. 
408  (1879),  and  restrictions  against  the  disfigurement  of  public  squares,  Attorney- 
General  v.  Williams,  174  Mass.  476  (1899).  Water-pipes  for  public  supply, 
Smith  v.  Lincoln,  170  Mass.  488  (1898),  and  sewers,  Hildreth  v.  Lowell,  11  Gray 
345  (1858).  Cemeteries,  Balch  v.  Essex  County  Commissioners,  103  Mass.  106, 
(1869).  Reclaiming  a  large  tract  of  useless  or  noxious  land,  Talbot  v.  Hudson, 
16  Gray  417  (1860);  Dingley  v.  Boston,  100  Mass.  544  (1868);  Moore  v.  San- 
ford,  151  Mass.  285  (1890). 

5  French  v.  Quincy,  3  Allen  9  (1861);  Worden  v.  New  Bedford,  131  Mass. 
23  (1881);  Davis  v.  Rockport,  213  Mass.  279  (1913). 

6  Spaulding  v.  Lowell,  23  Pick.  71,  80  (1839);  Wheelock  v.  Lowell,  196 
Mass  220,  224  (1907). 

1  Opinion  of  the  Justices,  231  Mass.  603  (1919). 

1  Stetson  v.  Kempton,  13  Mass.  271  (1816) ;  Minot  v.  West  Roxbury,  112 
Mass.  1  (1873);  Wheelock  v.  Lowell,  196  Mass.  220  (1907). 


104  Taxation   in   Massachusetts  [part  i 

So  also  public  funds  may  be  expended  to  construct  a  hall  for  po- 
litical rallies,  conventions  and  other  public  meetings  of  citizens.  A 
commodious  and  convenient  place  in  which  the  citizens  may- 
meet  and  exercise  their  right  of  assembling  and  of  considering 
and  discussing  public  affairs  is  for  the  public  use  in  its  consti- 
tutional sense.2 

The  relief  of  the  poor  and  needy  has  from  the  earliest  times 
been  recognized  as  a  proper  object  for  the  expenditure  of  pub- 
lic money.  Cities  and  towns  have  ample  power  to  provide  in 
any  reasonable  way  for  paupers,  whether  it  be  by  furnishing 
out-of-door  relief  or  by  support  in  almshouses,  or  whether  their 
need  of  relief  is  permanent  or  caused  by  a  temporary  condi- 
tion.3 This  power  would  of  course  extend  to  providing  im- 
mediate relief  for  those  who  are  left  without  food  or  shelter 
as  a  result  of  a  disastrous  fire  or  flood  or  other  like  calamity; 
but  it  does  not  warrant  the  raising  of  money  by  taxation  in 
order  to  loan  it  to  the  owners  of  land  which  has  been  swept 
by  a  disastrous  fire,  in  order  to  enable  them  to  rebuild;  for  in 
such  case  the  benefit  would  be  primarily  to  the  individuals, 
and  the  public  advantage  in  having  the  burned  district  speedily 
rebuilt  would  be  secondary.4 

The  means  of  transportation  for  people  at  large  is  a  matter 
of  public  interest.  In  earlier  times  turnpikes  and  toll  bridges 
in  private  ownership  afforded  facilities  for  travel.  Gradually 
these  have  been  taken  over  by  counties,  cities  and  towns  and 
the  tolls  abolished.  The  construction,  maintenance  and  repair 
of  public  highways  is  a  lawful  object  for  the  expenditure  of 
public  funds,5  and  this  power  extends  to  the  lighting6  of  the 

2  Wheelock  v.  Lowell,  196  Mass.  220  (1907).  So  also  it  has  been  held  that 
public  funds  may  be  expended  for  repairing  a  town  clock,  Willard  v.  New- 
buryport,  12  Pick.  227  (1831)  and  even  for  building  a  market  house,  Spaulding 
v.  Lowell,  23  Pick.  71  (1839). 

3  Opinion  of  the  Justices,  182  Mass.  605,  609  (1903).  If  a  person  falls  into 
immediate  need  he  must  be  relieved,  no  matter  how  much  property  he  may 
have.    Groveland  v.  Medford,  1  Allen  23  (1861). 

4  Lowell  v.  Boston,  111   Mass.  454  (1873). 

5  Opinion  of  the  Justices,  204  Mass.  607,  609  (1910);  Opinion  of  the 
Justices,  211  Mass.  624,  628  (1912).  The  real  purpose  for  which  public  money 
is  being  spent  may  be  inquired  into;  but  if  a  highway  is  laid  out  for  public 
travel  the  public  funds  may  be  expended  therefor,  even  if  the  underlying 
motive  was  to  open  up  a  tract  of  land  belonging  to  the  town.  Wright  v. 
Quinn,  Mass.  (1921). 

6  Opinion  of  the  Justices,  150  Mass.  592  (1890) ;  Spaulding  v.  Peabody, 
153  Mass.  129  (1891).    See  also  Dickinson  v.  Boston,  188  Mass.  595  (1905). 


sect.  59]  Purposes  for  which  Taxes  can  be  Levied  105 

public  ways  and  keeping  them  sprinkled.7  So  also  the  owner- 
ship and  operation  of  a  ferry  by  a  municipal  corporation 
contravenes  no  constitutional  limitation.8  It  was  no  violation 
of  the  constitutional  rights  of  the  taxpayers  when  the  common- 
wealth in  1862  acquired  the  ownership  and  assumed  the  man- 
agement of  the  Troy  and  Greenfield  Railroad.9  It  is  equally 
unobjectionable  when  the  public  funds  are  used  to  aid  in  the 
construction  of  a  steam  railroad  owned  and  operated  by  a 
private  corporation  whether  such  aid  is  in  the  form  of  a  subsidy, 
a  loan  or  a  subscription  to  stock,  since  the  primary  purpose  of 
such  expenditure  is  to  improve  the  means  of  public  travel.10 
Under  modern  conditions  local  transportation  by  an  electric  rail- 
way may  also  so  concern  the  welfare  and  convenience  of  all  the 
inhabitants  of  a  particular  district  that  the  legislature  may 
constitutionally  provide  for  the  construction  of  a  subway  at 
the  public  expense  for  the  use  of  a  railway  operated  by  a  private 
corporation,11  or  authorize  a  deficit  in  the  operating  expenses  of 
such  a  railway  to  be  met  by  a  contribution  of  public  funds.12 

Money  may  be  raised  by  taxation  in  order  to  enable  a  city 
or  town  to  furnish  to  its  inhabitants  one  of  the  necessities  and 
conveniences  of  life,  when  the  enterprise  is  of  such  a  character 
that  it  concerns  the  welfare  and  convenience  of  all  the  inhab- 
itants of  the  city  or  town  and  cannot  be  successfully  undertaken 
by  private  individuals  without  the  aid  of  a  franchise  from  the 
state,  such  as  a  grant  of  the  right  to  maintain  permanent  struc- 
tures in  the  public  streets,  or  the  right  to  exercise  eminent  do- 
main, and  when  as  a  practical  matter,  having  due  regard  to  the 
reasonable  convenience  of  the  public,  there  can  be  no  compe- 
tition among  different  parties  furnishing  such  necessities  and 
conveniences.    For  this  reason  a  municipal  corporation  may  be 

7  Sears  v.  Boston,  173  Mass.  71  (1899) ;  Phillips  Academy  v.  Andover,  175 
Mass.  118  (1900). 

8  Attorney  General  v.  Boston,  123  Mass.  460  (1877).  See  also  Davies  v. 
Boston,  190  Mass.  194  (1906). 

»  St.  1862,  Chap.  156.  See  Troy  v.  Greenfield  R.  R.  Co.  v.  Commonwealth, 
127  Mass.  43  (1879). 

10  Portage  County  Supervisors  v.  Wisconsin  Central  R.  R.  Co.,  121  Mass. 
460  (1877):  Kittredge  v.  North  Brookfield,  138  Mass.  286  (1885);  Sears  v. 
Street  Commissioners  of  Boston,  180  Mass.  274,  279  (1902). 

11  Prince  v.  Crocker,  166  Mass.  347  (1896);  Browne  v.  Turner,  176  Mass. 
9  (1900);  Boston  v.  Treasurer  &  Receiver  General,  237  Mass.  403  (1921). 

12  Opinion  of  the  Justices,  231  Mass.  603  (1919);  Chelsea  v.  Treasurer  & 
Receiver  General,  237  Mass.  422  (1921). 


106  Taxation   in   Massachusetts  [part  i 

authorized  to  undertake  such  public  utilities  as  the  furnishing 
of  a  public  water  supply,13  or  the  manufacture  and  distribution 
of  gas  and  electric  light  for  sale  to  its  inhabitants.14  It  is  not 
however  within  the  power  of  the  legislature  to  authorize  a 
municipal  corporation  to  engage  in  the  business  of  selling  a  com- 
modity to  its  inhabitants,  even  though  the  commodity  be  one 
of  the  necessities  of  life,  such  as  fuel,  if  the  business  is  an  ordi- 
nary private  occupation  which  can  be  and  ordinarily  is  carried 
on  without  the  aid  of  a  franchise  from  the  state.15  It  would  not 
be  a  public  use  of  money  for  the  government  to  expend  it  in 
the  establishment  of  stores  or  shops  for  the  purpose  of  carrying 
on  a  business  of  manufacturing  and  selling  goods  in  competi- 
tion with  individuals  with  a  view  either  to  the  profit  that  could 
be  made  through  the  business,  or  to  the  indirect  gain  that 
might  result  to  the  purchasers  if  prices  were  reduced  by  govern- 
mental competition.16  When  however,  in  time  of  scarcity,  it 
appears  that  agencies  of  government  can  obtain  a  commodity 
constituting  one  of  the  necessities  of  life  when  individuals  can- 
not, a  municipal  corporation  may  be  authorized  to  purchase 
and  sell  such  commodity  for  the  relief  of  the  community  as 
long  as  such  conditions  continue.17 

The  state  or  a  municipal  corporation  cannot  enter  upon  a 
private  business  merely  for  the  profit  that  is  expected  to  be 
derived  therefrom,18  but  when  a  municipal  corporation  has  ac- 
quired property  in  good  faith  for  public  purposes,  it  may  rent 
to  private  parties  so  much  of  such  property  as  is  not  at  the  time 

13  Opinion  of  the  Justices,  150  Mass.  592  (1890);  Watson  v.  Needham,  161 
Mass.  404  (1894). 

14  Opinion  of  the  Justices,  150  Mass.  592  (1890). 

15  Opinions  of  the  Justices,  155  Mass.  598  (1892);  Opinion  of  the  Justices, 
182  Mass.  605  (1903).  A  state  statute  authorizing  a  town  to  issue  its  bonds 
in  aid  of  a  private  manufacturing  enterprise  is  in  violation  of  the  federal  consti- 
tution, as  authorizing  taxation  which  results  in  the  taking  of  property  without 
due  process  of  law.  Loan  Association  v.  Topeka,  20  Wall.  655  (1874).  The 
power  of  a  town  to  erect  a  market-house  was  sustained  on  the  ground  that  it 
was  sanctioned  by  ancient  usage.    Spaulding  v.  Lowell,  23  Pick.  71  (1839). 

16  See  however  Jones  v.  Portland,  245  U.  S.  217  (1917),  in  which  it  was 
held  that  the  establishment  of  a  municipal  ice-plant  was  not  a  violation  of 
the  constitutional  rights  of  the  taxpayers,  and  Green  v.  Frazier,  253  U.  S.  233 
(1920),  in  which  the  action  of  a  state  in  engaging  in  the  business  of  marketing 
farm  products  and  of  providing  homes  for  the  people  was  sustained. 

17  Opinion  of  the  Justices.  182  Mass.  605  (1903).  See  also  the  Forty-seventh 
Amendment  to  the  constitution  infra  §  61. 

18  Opinion  of  the  Justices,  204  Mass.  607  (1910) ;  Opinion  of  the  Justices, 
211  Mass.  624  (1912). 


sect.  GO]      Purposes  for  which  Taxes  can  be  Levied  107 

needed  for  the  public  use,10  and  it  may  undergo  a  reasonable 
expense  to  make  such  property  available  for  rental.20  So  also 
while  a  municipal  corporation  could  not  raise  money  in  order 
to  invest  the  same  in  the  securities  of  private  corporations  for 
the  profit  to  be  derived  therefrom,  it  may  invest  money  which 
it  has  lawfully  raised  rather  than  leave  it  idle  until  required 
for  the  public  use.2 


21 


60.   Gratuities,  Bounties  and  Pensions 

Public  funds  cannot  be  constitutionally  employed  to  make 
gifts  or  gratuities  to  private  individuals.1  On  the  other  hand 
the  legislature  in  authorizing  the  payment  of  public  funds  to 
individuals  is  not  restricted  to  meeting  only  such  obligations 
as  could  not  be  avoided  without  violating  constitutional  rights. 
The  legislature  is  not  forbidden  to  be  just  in  some  cases  where 
it  is  not  required  to  be  by  the  letter  of  paramount  law.2  When- 
ever it  can  fairly  be  thought  that  some  public  good  will  be  served 
by  the  grant  of  an  unstipulated  reward  or  by  the  payment  of 
reimbursement  or  compensation  which  the  state  is  not  consti- 
tutionally bound  to  make,  such  grant  or  payment  will  constitute 
an  expenditure  of  money  for  the  public  use.3 

A  statute  which  provides  that  those  dealing  with  the  public 
shall  be  paid  more  than  the  goods  furnished  or  services  per- 
formed are  reasonably  worth  would  be  objectionable  as  author- 
izing a  gratuity;  but  the  legislature  is  not  bound  to  provide 
that  laborers  on  the  public  works  shall  be  engaged  on  the  terms 
most  favorable  to  the  public  with  respect  to  wages  and  hours 
of  labor  that  can  be  secured  by  open  competition,  for  the  leg- 
islature may  deem  that  the  superior  efficiency  of  well  paid  labor 
serving  during  reasonable  hours  will  justify  the  employment 
of  men  on  less  favorable  terms  than  could  be  secured  by  the 
stress  of  competition.4     So  also  the  legislature  may  provide 

19  French  v.  Quincy.  3  Allen  9  (1861) ;  Worden  v.  New  Bedford,  131  Mass. 
23  (1881);  Wheelock  v.  Lowell,  196  Mass.  220  (1907);  Davis  v.  Rockport,  213 
Mass.  279  (1913);   Wright  v.  Walcott,  Mass.  (1921). 

20  Davis  v.  Rockport.  213  Mass.  279  (1913). 

21  Foote  v.  Salem,  14  Allen  87  (1867). 

1  Lowell  v.  Boston,  111  Mass.  454  (1873);  Mead  v.  Acton,  139  Mass.  341 
(1885);  Opinion  of  the  Justices,  186  Mass.  603  (1904);  Opinion  of  the  Justices, 
190  Mass.  611   (1906);  Whittaker  v.  Salem.  216  Mass.  483  (1914). 

2  Earle  v.  Commonwealth,  180  Mass.  579  (1902). 

3  Infra  notes  4,  5,  6.  12.  13,  17,  18,  19,  and  20. 

4  Atkin  v.  Kansas,  191  U.  S.  207  (1907) ;  Opinion  of  the  Justices,  208  Mass. 
619    (1911);    Woods   v.  Woburn,  220  Mass.  416    (1915). 


108  Taxation   in    Massachusetts  [part  i 

that  laborers  employed  by  contractors  upon  the  public  works 
may,  if  their  wages  are  in  arrears,  recover  from  the  city  or  town 
for  whom  the  work  is  being  done  the  amount  due  them  from  the 
contractor.5 

Public  funds  may  be  used  to  pay  for  injuries  to  property 
caused  by  the  construction  of  public  works  although  the  injuries 
are  of  such  a  character  that  the  owner  of  the  property  has  no 
constitutional  right  to  compensation.6  So  also  the  legislature 
may  make  municipal  corporations  liable  in  tort  for  injuries  to 
persons  or  property  for  which  there  was  no  liability  at  common 
law.  Examples  of  such  legislation  are  the  statutes  which  render 
a  city  or  town  liable  for  injuries  from  defective  highways,7  for 
injuries  from  mobs 8  and  for  unlawfully  excluding  children  from 
the  public  schools.9 

With  respect  to  bounties,  pensions  and  other  rewards  for 
military  service,  the  principle  to  be  deduced  from  the  decisions 
is  that  if  the  payment  is  made  for  the  purpose  of  encouraging 
the  spirit  of  loyalty  and  patriotism  rather  than  merely  as  a 
gratuity  to  those  who  have  deserved  well  of  the  state  it  will 
be  constitutional.  Thus  it  has  been  held  that  bounties  paid 
to  encourage  enlistments  during  the  progress  of  a  war,10  statues 
and  memorials  to  those  who  served  in  war,11  a  preference  in 
public  employment  to  veterans  of  a  war  who  are  competent 
to  perform  the  duties  of  such  employment,12  and  even  a  bounty 
or  bonus  to  all  who  served  in  a  war,  if  granted  for  the  purpose  of 
promoting  loyalty  and  patriotism,13  may  be  constitutionally 
provided  by  the  legislature.  On  the  other  hand  the  payment 
of  bounties  to  those  who  had  not  received  them  during  the  war 
merely  to  equalize  the  compensation  of  those  who  served,14  the 
right  to  public  employment  regardless  of  ability  to  perform  the 
service,15  and  the  construction  of  a  building  for  the  use  of  an 

5  Callahan  v.  Boston,  175  Mass.  201  (1901). 

6  Earle  v.  Commonwealth,  180  Mass.  579  (1902). 

7  G.  L.  c.  84  §  §  15-25  inc. 

8  G.  L.  c.  269  §  8. 

9  G.  L.  c.  76  §  16. 

10  Freeland  v.  Hastings,  10  Allen  570  (1865). 

11  Kingman  v.  Brockton,  153  Mass.  255   (1891). 

12  Opinions  of  the  Justices,  166  Mass.  589  (1896). 

13  Opinion  of  the  Justices,  211  Mass.  608  (1912).  See  also  St.  1919  Chap. 
283  providing  for  a  bonus  for  those  who  served  in  the  war  with  Germany. 

14  Mead  v.  Acton,  139  Mass.  341  (1885);  Opinion  of  the  Justices,  186  Mass. 
603  (1904);  Opinion  of  the  Justices.  190  Mass.  611   (1906). 

15  Opinions  of  the  Justices,  166  Mass.  589  (1896). 


sect.  61]      Purposes  for  which  Taxes  can  be  Levied  109 

association  of  soldiers  of  a  former  war  1G  are  beyond  the  consti- 
tutional power  of  the  legislature. 

The  same  principles  apply  to  the  payment  to  individuals 
who  have  performed  meritorious  services  to  the  public  of  a  civil 
nature,  when  there  is  no  legal  obligation  to  make  such  pay- 
ment. There  is  no  constitutional  objection  to  reimbursing  in- 
dividuals for  money  they  have  advanced  on  behalf  of  the  pub- 
lic,17 or  for  expenses  they  have  incurred  in  the  performance  of 
public  service  or  the  defense  of  public  rights.18  Thus  when 
one  employed  to  work  upon  a  public  building  belonging  to  a 
town  has  performed  his  work  with  such  fidelity  that  the  town 
has  received  a  benefit  and  it  is  just  and  equitable  that  he  should 
receive  compensation  in  addition  to  what  his  contract  called  for, 
the  constitution  does  not  prohibit  the  payment  to  him  by  the 
town  of  such  additional  compensation.19  Similarly  the  leg- 
islature may  authorize  a  town  to  pay  to  the  dependents  of  a 
person  who  died  while  holding  office  the  salary  for  a  period  of 
time  after  his  decease  to  which  he  would  have  been  entitled  if 
living,  if  it  can  fairly  be  thought  that  the  public  good  will  be 
served  by  such  an  unstipulated  reward.20  There  is  however  a 
limit  to  this  power.  However  meritorious  a  project  may  ap- 
pear to  be  either  in  its  practical  or  ethical  or  sentimental  as- 
pects, if  it  is  in  essence  a  gift  to  an  individual  rather  than  a 
furthering  of  the  public  interest,  money  raised  by  taxation  can- 
not be  appropriated  for  it.  Hence  a  town  cannot  grant  an 
employee  a  prolonged  leave  of  absence  from  duty  at  half  pay.21 

61.   Special  Constitutional  Provisions  Affecting  the 
Purposes  for  which  Taxes  can  be  Levied 

There  have  been  a  number  of  constitutional  amendments 
adopted  from  time  to  time,  some  of  which  restrict  and  others 
expand  the  limitation  upon  governmental  expenditure  included 

16  Kingman  v.  Brockton,  153  Mass.  255  (1891). 

17  Freeland  v.  Hastings,  10  Allen  570  (1865). 

18  Nelson  v.  Milford,  7  Pick.  18  (1828) ;  Bancroft  v.  Lynnfield,  18  Pick. 
566  (1836);  Babbitt  v.  Savoy,  3  Cush.  530  (1849);  Hadsell  v.  Hancock,  3 
Gray  526  (1855);  Fuller  v.  Groton,  11  Gray  340  (1858);  Lawrence  v.  McAlvin, 
109  Mass.  311  (1872);  Curran  v.  Holliston,  130  Mass.  272  (1881). 

19  Friend  v.  Gilbert,  108  Mass.  408  (1871). 

20  Opinion  of  the  Justices.  175  Mass.  599  (1900). 

21  Whittaker  v.  Salem,  216  Mass.  483  (1914). 


110  Taxation   in   Massachusetts  [part  i 

in  the  general  requirement  that  taxes  can  be  levied  only  for 
the  public  use. 

In  Massachusetts  there  are  many  charitable  or  educational 
institutions,  such  as  hospitals,  colleges  and  academies,  which 
are  maintained  by  trustees  or  by  private  educational  or  chari- 
table corporations  by  means  of  endowments  provided  by  the 
generosity  of  private  individuals.  As  it  would  clearly  rest  within 
the  power  of  the  legislature  to  establish  and  maintain  with  the 
public  funds  institutions  owned  and  operated  by  the  state  and 
carrying  on  similar  work,  it  was  generally  considered  to  con- 
stitute a  public  use  of  the  public  funds  to  assist  the  existing 
institutions  of  this  character  by  grants  or  donations.1  A  fear 
of  the  evils  which  might  flow  from  the  unlimited  subsidizing 
of  private  institutions,  especially  those  maintained  by  particu- 
lar religious  sects,  led  however  to  the  restriction  and  finally  to 
the  prohibition  of  such  a  practice. 

The  Eighteenth  Amendment  to  the  constitution  of  Massa- 
chusetts, adopted  in  1855,  in  substance  provided  that  money 
raised  by  taxation  for  the  support  of  the  public  schools  should 
be  expended  only  upon  schools  conducted  under  the  order  and 
superintendence  of  the  municipal  authorities  and  not  upon 
the  schools  of  any  religious  sect.  It  was  held  that  this  provi- 
sion applied  only  to  the  schools  which  are  part  of  our  established 
system  of  common  education,  whether  supported  wholly  by 
taxation  or  not,2  and  that  it  did  not  prohibit  the  appropriation 
of  public  funds  in  aid  of  higher  educational  institutions  such 
as  incorporated  colleges  or  academies,  even  if  under  sectarian 
or  ecclesiastical  control.3  Indeed,  it  was  only  by  a  bare  majority 
that  the  supreme  court  held  in  an  advisory  opinion  rendered 
in  1913  that  the  constitution  prohibited  the  appropriation  of 
public  money  for  aiding  directly  any  church,  religious  denomi- 
nation, or  religious  society.4 

1  Fee  supra  §  §    52,  53  as  to  exempting  such  institutions  from  taxation. 

2  The  Eighteenth  Amendment  prohibited  the  adoption  of  a  school  managed 
by  private  parties  as  part  of  the  common  school  system  of  a  town  and  the 
maintenance  of  such  school  in  part  or  in  whole  at  the  expense  of  the  tax- 
payers, Jenkins  v.  Andover,  103  Mass.  94  (1869).  A  statute  providing  that  a 
town  which  does  not  maintain  a  high  school  shall  pay  for  the  tuition  of  any 
child  who  resides  in  the  town  and  attends  the  high  school  of  another  town  is 
not  in  violation  of  the  Eighteenth  Amendment.  Fiske  v.  Huntington,  179  Mass. 
571  (1901). 

3  Merrick  v.  Amherst,  12  Allen  500  (1866)  ;  Jenkins  v.  Andover,  103  Mass. 
94  (1869);  Opinion  of  the  Justices,  214  Mass.  598  (1913). 

4  Opinion  of  the  Justices,  214  Mass.  598  (1913). 


sect.  61]      Purposes  for  which  Taxes  can  be  Levied  111 

In  1917  the  Eighteenth  Amendment  was  replaced  by  the 
Forty-sixth  Amendment  which  prohibits  the  use  of  public  money 
for  any  school,  whether  under  public  control  or  otherwise,  in 
which  any  denominational  doctrine  is  inculcated,  or  for  any 
educational,  charitable  or  religious  institution  or  undertaking 
whatever  not  under  public  ownership  and  control,  except  free 
public  libraries  and  except  when  necessary  to  carry  out  legal  obli- 
gations already  entered  into. 

In  1910  the  supreme  judicial  court  in  two  advisory  opinions 
held  that  the  public  funds  could  not  be  expended  in  order  to 
acquire  land  adjacent  to  but  outside  the  limits  of  a  public  way, 
and  which  was  subdivided  into  lots  of  insufficient  size  and  shape 
for  adequate  buildings,  for  the  purpose  of  dividing  the  land 
so  acquired  into  appropriate  lots  and  selling  or  leasing  it  to 
private  parties.5  In  the  following  year,  by  the  adoption  of  the 
Thirty-ninth  Amendment  to  the  constitution,  expenditures  for 
such  a  purpose,  under  special  act  of  legislature,  was  authorized. 

In  1912  the  supreme  judicial  court,  in  an  advisory  opin- 
ion, held  that  it  was  not  within  the  power  of  the  legislature 
to  authorize  the  use  of  public  funds  in  order  to  purchase  land 
for  developing,  building  upon  and  renting  and  selling  the  same, 
for  the  purpose  of  providing  homes  for  mechanics,  laborers  or 
other  wage  earners.6  In  1915,  by  the  adoption  of  the  Forty- 
third  Amendment,  power  was  given  to  the  legislature  to  expend 
the  public  funds  to  acquire  land  to  provide  homes  for  citizens, 
subject  to  the  condition  that  no  land  or  buildings  should  be 
sold  for  less  than  the  cost  thereof. 

Other  constitutional  amendments  affecting  the  purposes  for 
which  taxes  can  be  levied  are  the  Forty-seventh,  declaring  that 
the  maintenance  and  distribution  at  reasonable  rates,  during 
time  of  war,  public  exigency,  emergency  or  distress,  of  a  suffi- 
cient supply  of  food  and  other  common  necessaries  of  life  and 
the  providing  of  shelter  are  public  functions;  the  Forty-ninth, 
declaring  that  the  conservation,  development  and  utilization 
of  the  agricultural,  mineral,  forest,  water  and  other  natural  re- 
sources of  the  commonwealth  are  public  uses ;  and  the  Fifty-first, 
declaring  that  the  preservation  and  maintenance  of  ancient 
landmarks  and  other  property  of  historical  or  antiquarian  inter- 

5  Opinion  of  the  Justices,  204  -Mass.  607,  616  (1910). 

6  Opinion  of  the  Justices,  211  Mass.  624  (1912). 


112  Taxation   in    Massachusetts  [part  i 

est  is  a  public  use.  All  of  the  last  named  amendments  were 
proposed  by  the  Constitutional  Convention  of  1917  and  rati- 
fied and  adopted  by  the  people.  Of  these  the  Forty-seventh  and 
Fifty-first  Amendments  would  not  seem  to  constitute  more  than 
a  declaration  of  the  existing  law;  and  until  the  Forty-ninth 
Amendment  is  acted  upon  and  construed  by  the  courts  it  is  dif- 
ficult to  estimate  the  extent  of  the  power  granted.  It  should  be 
remembered  that  taxation  for  a  private  use,  though  expressly 
authorized  by  a  state  constitution,  would  be  obnoxious  to  the 
Fourteenth  Amendment  to  the  federal  constitution,  and  that 
the  supreme  court  of  the  United  States,  although  it  would 
give  a  broad  construction  to  the  powers  of  the  legislature  of 
a  state  with  respect  to  the  taxation  of  the  citizens  of  such  state, 
would  not  be  bound  by  the  declaration  of  a  state  constitution 
that  a  purpose  for  which  taxation  was  authorized  constituted 
a  public  use. 

62.   The  Purposes  for  which  a  City  or  Town  may  Levy 

Taxes 

The  power  of  a  city  or  town  to  raise  money  by  taxation  is  not 
commensurate  with  the  power  to  levy  taxes  which  is  conferred 
upon  the  legislature  by  the  constitution  of  the  commonwealth.1 
Towns  and  cities  are  corporations  of  limited  powers  and  cannot 
raise  money  by  taxation  or  expend  money  raised  by  taxation  ex- 
cept for  purposes  expressly  or  by  plain  implication  authorized 
by  the  legislature.2  A  tax  levy  which  includes  an  unauthor- 
ized appropriation  is  pro  tanto  void.3  The  purposes  for  which 
a  city  or  town  may  expend  money  are  set  forth  in  detail  in  chap- 
ter forty  of  the  General  Laws. 

If  the  object  of  an  appropriation  is  within  the  scope  of  the 
corporate  powers  of  a  town,  the  town  is  the  proper  judge  of  the 

1  Flood  v.  Leahy,  183  Mass.  232  (1903). 

2  Stetson  v.  Kempton,  13  Mass.  272  (1816);  Parsons  v.  Goshen,  11  Pick. 
396  (1831);  Spaulding  v.  Lowell,  23  Pick.  71  (1839);  Tash  v.  Adams,  10  Cush. 
252  (1852);  Hood  v.  Mayor  &  Aldermen  of  Lynn,  1  Allen  103  (1861);  Frost 
v.  Belmont,  6  Allen  152  (1863);  Freeland  v.  Hastings,  10  Allen  570  (1865); 
Minot  v.  West  Roxbury,  112  Mass.  1  (1873);  Coolidge  v.  Brookline,  114  Mass. 
592  (1874);  Cusick  v.  Brookline,  123  Mass.  91  (1877);  Spaulding  v.  Peabody, 
153  Mass.  129  (1891);  Waters  v.  Bonvouloir,  172  Mass.  286  (1899). 

3  It  was  held  in  Gerry  v.  Stoneham,  1  Allen  319  (1861),  that  an  appropria- 
tion of  $100  for  an  unauthorized  purpose  made  the  entire  tax  of  the  year  void, 
but  by  St.  1859,  c.  118,  now  G.  L.  c.  59  §  82,  only  the  illegal  portion  of  the 
tax  is  void.    See  infra   page  311. 


sect.  63 J      Purposes  for  which  Taxes  can  be  Levied  113 

amount  of  the  appropriation  and  of  the  details  of  carrying  it 
out.4  It  is  perfectly  proper  for  the  town  to  make  reasonable 
provision  for  the  future  though  present  wants  are  exceeded  and 
to  make  a  profitable  commercial  use  of  what  it  has  acquired 
in  excess  of  present  needs  until  the  whole  is  required  for  public 
use.5  The  objects  of  an  appropriation  must  be  designated  in 
the  vote  authorizing  a  tax  or  otherwise  declared  and  made  known 
at  the  time  of  an  appropriation.6 

63.   Constitutional  Rights  of  the  Taxpayers  of  a  City 

or  Town 

It  is  a  well  established  principle  of  constitutional  law  that 
taxes  may  be  levied  only  for  the  public  uses  of  the  district  taxed.1 
The  duty  or  obligation  to  pay  taxes  by  the  individual  is  founded 
on  his  participation  in  the  benefits  arising  from  their  expendi- 
ture.2 It  would  not  be  competent  for  the  legislature  to  donate 
money,  raised  by  taxation  upon  persons  or  property  within  this 
commonwealth,  for  the  relief  of  residents  of  other  states  or  of 
foreign  countries  who  may  be  suffering  from  famine,  flood  or 
other  disaster.  It  would  be  equally  incompetent  for  the  legis- 
lature to  levy  a  tax  on  the  property  located  in  one  city  to  pay 
for  a  public  improvement  established  for  the  use  of  the  people 
of  another  city,3  or  to  require  one  city  or  town  to  pay  the  entire 
cost  of  a  public  improvement  established  for  the  use  of  the  whole 
commonwealth,4  or  to  levy  a  tax  upon  the  whole  commonwealth 
for  a  public  improvement  established  for  the  benefit  of  a  single 
city  or  town.5  It  has  however  been  held  that  such  a  result  may 
be  effected  by  indirect  means,  and  that  a  statute  which  author- 
izes the  levy  of  a  tax  by  the  state  upon  certain  classes  of  prop- 
erty and  provides  for  the  distribution  of  the  proceeds  of  the  tax 
among  the  cities  and  towns  of  the  state  in  accordance  with  a 

*  Haven  v.  Lowell,  5  Met.  35  (1842);  Friend  v.  Gilbert,  108  Mass.  408 
(1871). 

5  French  v.  Quincy,  3  Allen  9  (1861);  Foote  v.  Salem,  14  Allen  87  (1867); 
Worden  v.  New  Bedford,  131  Mass.  23  (1881). 

6  Freeland  v.  Hastings,  10  Allen  570  (1865). 

1  Duffy  v.  Treasurer  &  Receiver  General,  234  Mass.  42  (1919). 

2  Thomas  v.  Gay,  169  U.  S.  264,  276  (1898). 

3  Hampshire  v.  Franklin,  16  Mass.  76  (1819);  Norwich  v.  Hampshire 
County  Commissioners,  13  Pick.  60  (1832) ;  Opinion  of  the  Justices,  234  Mass. 
612,  620   (1920). 

4  Merrick  v.  Amherst,  12  Allen  500  (1866). 

6  Kingman,  Petitioner,  153  Mass.  566   (1891). 


114  Taxation   in    Massachusetts  [part  i 

rule  of  apportionment  which  bears  no  relation  to  the  location 
of  the  property  from  which  the  tax  was  derived,  while  it  goes 
to  the  verge  of,  does  not  overstep  the  limits  of  constitutional 
power,  even  if  it  necessarily  results  in  the  taxation  of  property 
situated  in  certain  cities  and  towns,  almost  wholly  for  the  use 
and  benefit  of  other  cities  and  towns.6  In  fact  the  supreme 
court  has  expressly  held  that  the  distribution  of  public  monies 
by  way  of  expenditures  either  directly  by  state  officers  or  in- 
directly through  county,  city,  town  or  district  officers  need  not 
be  according  to  any  principle  of  apportionment  or  equality  other 
than  such  as  commends  itself  to  the  wisdom  of  the  general 
court.7 

So  also  the  legislature  has  a  wide  discretion  in  the  appor- 
tionment of  public  burdens  among  the  different  subdivisions 
of  the  state,  and  a  statute  imposing  the  cost  of  maintaining  a 
particular  public  improvement  upon  the  counties,  cities  or 
towns  that  may  in  the  opinion  of  the  legislature  be  benefited 
by  the  establishment  of  the  improvement  is  unquestionably  con- 
stitutional.8 A  town  may  be  compelled  to  pay  the  whole  or 
part  of  the  cost  of  a  state  institution  within  its  limits 
if  the  town  receives  most  of  the  benefit  from  its  establishment 9 
or  if,  as  in  the  case  of  public  highways,  such  provision  is  a  fair 
and  convenient  way  of  distributing  a  general  public  burden 
among  the  cities  and  towns  of  the  state.10  The  apportioning  of 
a  public  burden  among  certain  specified  cities  and  towns  is  not 
a  betterment  assessment  and  the  principles  applicable  to  the 

6  Duffy  v.  Treasurer  &  Receiver  General,  234  Mass.  42  (1919);  Dane  v. 
Treasurer  &  Receiver  General,  237   Mass.  50   (1921). 

7  Knights  v.  Treasurer  &  Receiver  General,  237  Mass.  493  (1921).  See  also, 
Lowell  v.  Oliver,  8  Allen  247,  255  (1864). 

8  Norwich  v.  Hampshire  County  Commissioners,  13  Pick.  6b  (1832) ; 
Attorney  General  v.  Cambridge,  16  Gray  247  (1860) ;  Hingham  etc.  Turnpike 
Co.  v.  Norfolk  County,  6  Allen  353  (1863);  Salem  etc.  Bridge  Co.  v.  Essex 
County,  100  Mass.  282  (1868);  Dow  v.  Wakefield,  103  Mass.  267  (1869);  Carter 
v.  Cambridge  and  Brookline  Bridge  Proprietors,  104  Mass.  236  (1870);  Scituate 
v.  Weymouth,  108  Mass.  128  (1871);  Northampton  Bridge  Case,  116  Mass. 
442  (1875) ;  Sunderland  Bridge  Case,  122  Mass.  459  (1877) ;  Brayton  v.  Fall 
River,  124  Mass.  95  (1878);  Kingman,  Petitioner,  153  Mass.  567  (1891);  Adams, 
Petitioner,  165  Mass.  497  (1896);  Prince  v.  Crocker,  166  Mass.  347  (1896); 
Kingman,  Petitioner,  170  Mass.  Ill  (1898);  Browne  v.  Turner.  176  Mass.  9 
(1900). 

9  Merrick  v.  Amherst,  12  Allen  500  (1866);  Hanscom  v.  Lowell,  165  Mass. 
419  (1896);  Attorney-General  v.  Williams,  174  Mass.  476  (1899);  Hodgdon  v. 
Haverhill,   193   Mass.  406    (1907). 

10  Freeland  v.  Hastings,  10  Allen  570,  580  (1865). 


sect.  63]      Purposes  for  which  Taxes  can  be  Levied  115 

levy  of  betterment  assessments  are  irrelevant  to  such  appor- 
tioning. The  cities  and  towns  affected  are  not  entitled  to  be 
heard  at  any  stage  of  the  proceedings  upon  the  share  of  the  bur- 
den which  they  are  to  bear;11  and  in  apportioning  the  burden 
the  population  of  the  cities  to  be  assessed,  their  extent  and  their 
ability  to  bear  the  burden  may  be  considered,  as  well  as  the  benefit 
accruing  to  each.12  It  would  only  be  in  a  case  of  a  purely 
arbitrary  and  unreasonable  imposition  of  a  burden  upon  a  par- 
ticular section  of  the  state  that  the  court  would  have  any  occa- 
sion to  interfere.  Even  in  such  a  case  the  city  or  town  would 
have  no  standing  in  court  to  ask  for  relief,  and  the  court  would 
act  only  at  the  instance  of  an  aggrieved  taxpayer,  who  was  being 
made  to  bear  a  disproportionate  burden  of  taxation.13 

Apart  from  the  right  to  be  free  from  arbitrary  taxation 
for  the  benefit  of  another  portion  of  the  state,  the  inhabitants 
of  a  city  or  town  have  some  vague  and  shadowy  rights  of  local 
self-government  of  which  the  legislature  cannot  constitutionally 
deprive  them  14  and  it  may  be  that  there  are  purposes  of  suf- 
ficiently public  nature  that  the  legislature  may  authorize  local 
taxation  in  their  behalf  and  yet  of  such  distinctly  local  interest 
that  compulsory  expenditure  by  the  very  town  affected  would 
be  beyond  the  power  of  the  legislature  to  enforce.  It  would 
certainly  be  an  extreme  exercise  of  legislative  power  to  require 
a  municipality  against  its  wishes  and  without  its  consent  to 
establish  a  municipal  lighting  plant  at  the  expense  of  its  tax- 
payers to  furnish  light  to  its  own  inhabitants.  But  improve- 
ments which  benefit  the  health,  morals  or  safety  of  such  portion 

11  Chelsea  v.  Treasurer  &  Receiver  General,  237  Mass.  422  (1921). 

12  Commonwealth    v.    Newburyport,    103    Mass.    129,    134    (1864);    In    re' 
Metropolitan  Park  Commissioners,  209   Mass.  381    (1911);   Boston,   Petitioner, 
221    Mass.  468    (1915);    Opinion   of  the   Justices,   234   Mass.   612,  616    (1920); 
Boston  v.  Treasurer  &  Receiver  General,  237  Mass.  403  (1921). 

13  Chelsea  v.  Treasurer  &  Receiver  General,  237  Mass.  422  (1921). 

14  Commonwealth  v.  Plaisted,  148  Mass.  375,  384  (1889) ;  Mount  Hope 
Cemetery  v.  Boston,  158  Mass.  509  (1893);  Higginson  v.  Boston,  212  Mass. 
583  (1912);  Woods  v.  Woburn,  220  Mass.  416,  421  (1915).  The  distinction 
between  undertakings  carried  on  by  a  municipal  corporation  in  its  private  and 
proprietary  capacity  and  those  carried  on  in  its  public  and  governmental  capacity 
has  been  frequently  recognized  by  the  Supreme  Court  of  the  United  States. 
Tippecanoe  County  Commissioners  v.  Lucas,  93  U.  S.  108,  115  (1876);  Meri- 
wether v.  Garrett,  102  U.  S.  472.  518.  530  (1880) ;  Mobile  v.  Watson,  116  U.  S. 
289,  305  (1886) ;  Essex  Board  v.  Shinkle,  140  U.  S.  334,  342  (1891) ;  New  Orleans 
v.  Water  Works  Co.,  142  U.  S.  79,  91  (1891);  Covington  v.  Kentucky,  173 
U.  S.  231,  240  (1899);  Worcester  v.  Worcester  St.  Ry.  Co.,  196  U.  S.  539,  551 
(1905);  Monterey  v.  Jacks,  203  U.  S.  360  (1906);  Hunter  v.  Pittsburgh,  207 
U.  S.  161,  179  (1907). 


116  Taxation   in    Massachusetts  [part  i 

of  the  public  as  dwells  in  a  particular  municipality  may  un- 
questionably be  required  to  be  constructed  and  maintained  at 
the  expense  of  the  municipality  in  which  they  will  be  situated.15 


SPECIAL  ASSESSMENTS 

64.  The  Origin  and  Development  of  Special  Assessments 

The  system  of  general  taxation  which  has  grown  up  under 
our  customs,  laws  and  constitutions  consists  of  the  assessment 
at  definitely  fixed  intervals  of  a  sum  sufficient  to  meet  the  public 
expenses  of  each  political  subdivision  upon  all  the  persons  or 
all  the  property  contained  therein  at  a  uniform  rate,  and  no 
attempt  to  assess  each  taxpayer  for  the  benefit  he  receives  either 
from  the  public  expenditures  as  a  whole  or  from  the  different 
items  of  such  expenditures  is  required.  In  some  instances  how- 
ever an  expenditure  for  a  particular  public  purpose  is  assessed 
upon  those  who  occasion  the  expenditure,  as  when  the  expense 
of  supervising  public  service  corporations  is  assessed  upon  the 
corporation  supervised,1  or  the  expense  of  repairing  the  roads 
is  met  in  part  by  the  license  fees  imposed  upon  motor  vehicles.2 
So  also  it  frequently  happens  that  a  particular  public  improve- 
ment, while  enhancing  the  general  public  convenience  to  a 
certain  extent,  is  so  peculiarly  advantageous  to  a  definite  terri- 
tory which  does  not  happen  to  coincide  with  one  of  the  existing 
political  subdivisions  of  the  state  that  it  is  deemed  more  just 
to  assess  the  cost  of  the  improvement  upon  the  benefited  area 
than  to  include  it  in  the  general  tax  levy  upon  the  entire  com- 
munity.3   For  example,  the  cost  of  maintaining  a  bridge  is  some- 

15  Higginson  v.  Boston,  212  Mass.  583  (1912). 

1  See  for  example,  G.  L.  c.  25  §  11. 

2  See  G.  L.  c.  90  §  34.  The  limits  of  the  power  of  the  legislature  to 
levy  a  tax  upon  a  particular  class  of  persons  or  property  or  upon  particular 
acts,  occupations  or  privileges  to  meet  an  expenditure  for  a  particular  public 
purpose,  at  least  when  there  is  no  direct  relation  between  the  subject  of  the 
tax  and  the  subject  of  the  expenditure,  have  never  been  clearly  defined.  In 
Knights  v.  Treasurer  &  Receiver  General,  237  Mass.  493  (1921),  it  was  held  that 
the  statutes  questioned  in  that  case  did  not  constitute  a  tax  on  particular 
property  for  a  particular  public  purpose  and  it  was  not  decided  whether  such 
a  tax  would  be  constitutional  if  no  relation  between  the  tax  and  the  expendi- 
ture was  shown. 

3  See  Webster  v.  Fargo,  181  IT.  S.  395  (1901),  in  which  it  is  said  that  it 
is  within  the  power  of  the  state  to  create  special  taxing  districts  and  to  charge 
the  cost  of  a  local  improvement  upon  the  property  within  such  districts 
according  either  to  valuation,  area  or  frontage. 


sect.  64]  Special   Assessments  117 

times  imposed  upon  certain  designated  counties  or  towns,4  and 
in  other  cases  quasi  corporations  called  districts  are  created  to 
support  the  schools,  to  furnish  a  water  supply  or  to  provide 
for  the  extinguishment  of  fires  in  the  territory  embraced  in  the 
district.5  Although  the  funds  in  such  instances  are  raised  by 
a  tax  assessed  upon  all  property  within  the  district  at  a  uniform 
rate  and  such  a  tax  constitutes  a  general  tax  rather  than  a  spe- 
cial assessment,6  yet  it  represents  a  departure  from  the  funda- 
mental principle  of  general  taxation  by  imposing  the  expense 
of  a  particular  item  or  branch  of  public  enterprise  upon  the 
territory  actually  benefited  by  it.  One  step  farther  takes  us 
to  the  true  special  assessment  or  betterment  in  which  the 
cost  of  a  particular  improvement  is  assessed  in  whole  or  in 
part  upon  the  territory  benefited  by  the  improvement  in  pro- 
portion to  the  benefit  received  by  each  parcel  of  land  within 
such  territory. 

The  special  assessment  is  no  modern  innovation.  As  early  as 
1658  a  public  way  was  laid  out  by  the  general  court  of  the 
colony  of  Massachusetts  Bay  and  power  was  given  to  impose 
the  cost  on  "all  such  as  shall  have  benefit  of  the  way."  7  A  pro- 
vincial statute  enacted  in  1692  provided  that  the  damages  for 
land  taken  for  the  enlargement  and  regulation  of  narrow  and 
crooked  lanes  and  passages  in  Boston  should  be  paid  by  the 
neighborhood  or  town  "in  proportion  to  the  benefit  or  con- 
veniency  any  shall  have  thereby."8  The  statute  enacted  in  1760 
providing  for  rebuilding  that  part  of  Boston  which  had  been 
laid  waste  by  fire  required  a  jury  to  assess  the  damages  and  ben- 
efits from  new  streets  laid  out  therein,  the  damages  to  be  paid 
by  the  persons  benefited  or  by  the  town  of  Boston  or  by  both 
in  such  proportions  as  the  jury  should  find  reasonable.9    In  1709 

4  Norwich  v.  Hampshire  County  Commissioners,  13  Pick.  60  (1832);  Hing- 
ham  &  Quincy  Bridge  &  Turnpike  Co.  v.  Norfolk  County,  6  Allen,  353  (1863); 
Salem  Turnpike  &  Chelsea  Bridge  Co.  v.  Essex  County,  100  Mass.  282  (1868); 
Dow  v.  Wakefield,  103  Mass.  267  (1869);  Carter  v.  Cambridge  &  Brookline 
Bridge  Proprietors,  104  Mass.  236  (1870);  Scituate  v.  Weymouth,  108  Mass. 
128  (1871);  Northampton  Bridge  Case,  116  Mass.  442  (1875);  Brayton  v.  Fall 
River,  124  Mass.  95  (1878);  Kingman,  Petitioner,  153  Mass.  567  (1891); 
Williams  v.   Eggleston, .  170  U.  S.  310    (1898). 

5  See  for  example  G.  L.  c.  40,  §  §  41,  44;  c.  41,  §  §  113  to  119  inc.;  c.  48, 
S  §60-80  inc. 

6  Williams  College  v.  Williamstown,  219  Mass.  46  (1914). 

7  Mass.  Col.  Rec,  part  1,  327. 
s  St.  1692-3,  c.  1. 

9  St.  1760-1,  c.  3. 


118  Taxation   in    Massachusetts  [part  i 

and  again  in  1796  it  was  enacted  that  persons  receiving  any 
benefit  from  common  sewers  should  pay  to  the  persons  who  had 
built  the  sewers  such  a  proportional  part  of  the  cost  of  making 
and  repairing  the  same  as  should  be  assessed  upon  them  by  the 
selectmen  of  the  town.10  Provision  was  made  in  1727  that 
damages  caused  by  the  laying  out  of  particular  and  private 
ways, should  in  some  instances  be  paid  by  the  persons  benefited, 
and  these  provisions  are  still  in  force.11  In  1799  sidewalks  in 
Boston  were  authorized  to  be  built  at  the  expense  of  the  abut- 
ters.12 The  statutes  authorizing  the  compulsory  joint  drainage 
of  swamps  and  meadows  and  providing  for  the  assessment  of 
the  cost  upon  the  estates  benefited  were  of  early  origin  and 
are  still  upon  the  statute  books.13 

Many  of  these  statutes  were  enacted  before  the  legislative 
power  was  restricted  by  a  written  constitution  and  all  of  them 
before  constitutional  law  had  reached  the  stage  of  development 
in  which  it  had  become  necessary  that  each  legislative  enact- 
ment be  classified  and  subjected  to  certain  well  defined  limi- 
tations applicable  only  to  the  class  into  which  it  had  been  thrust. 
Subjected  to  modern  critical  analysis  not  all  of  these  statutes 
appear  to  be  an  exercise  of  the  power  of  taxation;  some  of  them 
seem  to  fall  within  the  police  power  and  others  are  very  close, 
at  least,  to  the  power  of  eminent  domain  in  imposing  the  obli- 
gation of  paying  the  land  damages  caused  by  a  particular  im- 
provement upon  the  persons  who  were  responsible  for  its 
construction.  Nevertheless  these  statutes,  although  difficult 
or  impossible  to  classify,  paved  the  way  for  the  true  special 
assessment  in  its  present  form,  which  unquestionably  is  imposed 
under  the  power  of  taxation,14  although  pecuniary  impositions 
under  the  police  power  have  also  a  recognized  place  in  our  juris- 
prudence.15 

io  St.  1709-10,  c.  5,  §3;  St.  1796,  c.  47,  §2. 

11  St.  1727-8,  c.  1,  §2;  G.  L.  c.  82,  §24. 

12  St.  1791,  c.  31,  §  1;  G.  L.  c.  83,  §  26. 
is  St.  1702,  c.  11;   G.  L.  c.  252,  §  14. 

14  Dorgan  v.  Boston,  12  Allen  223  (1866);  Harvard  College  v.  Aldermen  of 
Boston,  104  Mass.  470,  482  (1870) ;  Codman  v.  Johnson,  104  Mass.  491,  492  (1870)  ; 
Prince  v.  Boston,  111  Mass.  226,  231  (1872);  Boylston  Market  Association  v. 
Boston.  113  Mass.  528,  530  (1873);  Howe  v.  Cambridge,  114  Mass.  388, 
391  (1874);  Worcester  County  v.  Worcester,  116  Mass.  193  (1874);  Bigelow  v. 
Boston,  123  Mass.  50,  52  (1877) ;  Somerville  v.  Dickerman,  127  Mass.  272,  275 
(1879);  Boston  v.  Boston  &  Albany  R.  R.  Co.,  170  Mass.  95.  98  (1898);  White 
v.  Gove,  183  Mass.  333,  335  (1903) ;  Wheatland  v.  Boston,  202  Mass.  258,  262 
(1909). 

15  Infra  §  71. 


sect.  65]  Special  Assessments  119 

A  special  assessment,  though  justified  as  an  exercise  of  the 
taxing  power  and  itself  undoubtedly  a  form  of  taxation,  is  not 
necessarily  a  "tax"  when  that  word  is  used  without  qualification 
in  a  statute  or  contract,  and  whether  the  word  "tax"  so  used  is 
intended  to  include  special  assessments  must  be  gathered  from 
the  surrounding  circumstances.16 

65.  The  Constitutionality  of  Special  Assessments 

In  view  of  the  early  development  of  special  assessments  in 
this,  commonwealth  and  their  long  and  unquestioned  usage,  it 
it  not  surprising  that  when  objection  to  the  constitutionality  of 
this  form  of  taxation  was  finally  made  it  was  not  sustained  by 
the  courts.  The  supreme  court  of  Massachusetts  held  that 
none  of  the  requirements  of  the  constitution  were  violated  by 
a  tax  levied  for  public  purposes  of  a  local  character  although 
imposed  only  on  a  certain-town  or  district  or  on  persons  resid- 
ing or  owning  property  in  a  particular  locality,  and  that  an 
assessment  made  on  persons  in  respect  of  their  ownership  of 
certain  property  which  receives  a  peculiar  benefit  from  the  ex- 
penditure of  the  money  raised  by  the  tax,  or  by  reason  of  their 
residence  in  the  vicinity  of  a  proposed  public  improvement  and 
the  special  advantage  or  convenience  which  will  accrue  to  them 
and  their  property  therefrom,  will  not  be  held  invalid,  although 
it  does  not  operate  on  all  persons  and  property  in  the  commu- 
nity in  the  same  manner  as  taxes  levied  for  general  purposes.1 

16  A  special  assessment  is  a  tax  within  the  meaning  of  the  statute  regu- 
lating actions  at  law  to  recover  back  taxes  (G.  L.  c.  60  §  98),  Barrett  v. 
Cambridge,  10  Allen  48  (1865);  Knowles  v.  Boston,  129  Mass.  551  (1880); 
Wheatland  v.  Boston,  202  Mass.  258  (1909) ;  or  of  the  statute  restricting  the 
effect  of  partial  invalidity  (G.  L.  c.  59  §  82) ;  Lynde  v.  Maiden,  166  Mass. 
244  (1896).  It  is  not  however  a  tax  within  the  meaning  of  statutes  giving 
exemption  from  taxation,  whether  general  laws,  Boston  Seamen's  Friend 
Society  v.  Boston,  116  Mass.  181  (1874) ;  Worcester  Agricultural  Society  v. 
Worcester,  116  Mass.  189  (1874);  Phillips  Academy  v.  Andover,  175  Mass. 
118  (1900) ;  or  particular  charters,  Boston  Asylum  and  Farm  School  v.  Street 
Commissioners  of  Boston,  180  Mass.  485  (1902).  A  special  assessment  is  how- 
ever included  within  an  exemption  from  "all  civil  impositions,  taxes  and  rates." 
Harvard  College  v.  Aldermen  of  Boston,  104  Mass.  470  (1870).  A  special 
assessment  is  included  in  a  covenant  to  pay  "all  taxes  and  assesments,"  Cod- 
man  v.  Johnson,  104  Mass.  491  (1870) ;  "all  taxes  and  duties,"  Blake  v.  Baker, 
115  Mass.  188  (1874);  Simonds  v.  Turner,  120  Mass.  328  (1876);  "all  taxes, 
rates,  charges  and  assessments,"  Walker  v.  Whittemore,  112  Mass.  187  (1873); 
"the  rates,  taxes  and  duties  of  every  kind,"  Curtis  v.  Pierce,  115  Mass.  186 
(1874) ;  or  in  a  covenant  to  convey  "a  good  title,  free  from  all  mortgage  en- 
cumbrances, taxes  and  mechanics'  liens,"  Williams  v.  Monk,  179  Mass.  22  (1901). 
See  however  Smith  v.  Abington  Savings  Bank,  165  Mass.  285   (1896). 

1  Dorgan  v.  Boston,  12  Allen  223  (1866). 


120  Taxation   in   Massachusetts  [part  i 

Although  special  assessments  are  not  in  themselves  unconstitu- 
tional, the  opportunity  for  unfairness  and  oppression  offered  by 
their  use  is  so  much  greater  than  is  offered  by  general  taxation 
that  the  constitutional  provisions  applicable  to  the  power  of  tax- 
ation have  been  more  liberally  construed  in  favor  of  the  individ- 
ual in  passing  upon  taxation  of  the  former  class,  and  safeguards 
have  been  thrown  about  the  owners  of  land  subjected  to  special 
assessment  which  cannot  be  invoked  against  general  taxation. 
The  principal  requirements  of  a  valid  special  assessment 
are  as  follows: 

(1)  The  use  for  which  the  money  is  raised  must  be  public. 

(2)  The  improvement  for  which  the  assessment  is  levied 
must  beneficially  affect  a  well  defined  and  limited  area. 

(3)  The  assessment  must  not  exceed  the  actual  benefit  to 
each  parcel  assessed. 

(4)  The  owner  of  the  land  assesfld  must  be  given  an  oppor- 
tunity for  a  hearing  on  the  extent  ol  the  benefit. 

(5)  The  total  assessment  must  not  exceed  the  cost  of  the 
improvement. 

66.  The  Use  must  be  Public 

The  well  established  principle  that  public  funds  raised  by 
taxation  cannot  be  devoted  to  any  use  not  public x  is  not  limited 
in  its  application  to  funds  raised  by  general  taxation,  but  applies 
to  special  assessments  as  well.2  Public  highways,  sewers  and 
parks  are  unquestionably  for  the  public  use,  and  it  has  been 
held  that  the-  benefit  from  the  location  of  a  railroad  station 
may  be  the  basis  of  a  special  assessment.3  A  private  street 
in  which  the  public  has  no  right  of  passage  cannot  be  paid  for 
by  assessments  upon  the  abutters.4 

There  is  one  species  of  pecuniary  imposition  which  resembles 
in  form  a  special  assessment  but  which  does  not  require  the 
public  use  for  its  justification.  Under  a  branch  of  the  police 
power  of  the  state,  when  property  in  which  several  persons  have 
a  common  interest  cannot  be  fully  and  beneficially  enjoyed  in 

1  See  supra  §  58. 

2  Morse  v.  Stocker,  1  Allen  150  (1861) ;  Lowell  v.  Boston,  111  Mass.  454 
(1873);  Sears  v.  Street  Commissioners  of  Boston,  180  Mass.  274  (1902). 

3  Sears  v.  Street  Commissioners  of  Boston,  180  Mass.  274,  279  (1902). 

4  Morse  v.  Stocker,  1  Allen  150  (1861). 


sect.  67]  Special  Assessments  121 

its  existing  condition  and  the  parties  interested  therein  cannot 
agree  upon  a  scheme  for  the  more  advantageous  use  of  the  prop- 
erty, the  law  often  provides  a  way  in  which  they  may  compel 
one  another  to  submit  to  measures  necessary  to  secure  its  bene- 
ficial enjoyment,  making  just  compensation  to  any  of  the  pro- 
prietors whose  control  of  the  property  or  interest  therein  has 
been  modified  by  the  new  arrangement,  which  compensation 
those  of  the  proprietors  who  are  benefited  are  obliged  to  pay. 
The  exercise  of  this  power  in  most  instances  is  upon  property 
held  in  common,  but  the  principle  is  the  same  if  applied  to  a 
tract  of  land  affected  by  common  necessities  and  interests  al- 
though divided  into  parcels  held  by  individual  owners  in  sever- 
alty. A  familiar  instance  is  the  draining  of  swamps  and 
meadows,  the  condition  of  which  is  not  such  as  to  menace  the 
public  health,  but  merely  renders  them  incapable  of  beneficial 
use.  When  a  tract  of  low,  marshy  land  is  divided  into  several 
'parcels  held  by  different  owners  and  a  general  improvement  of 
the  whole  cannot  be  effected  without  the  harmonious  co-opera- 
tion of  all  the  owners,  the  common  necessity  is  met  and  the 
common  interest  secured  by  the  intervention  of  the  state,  and 
the  individual  rights  of  each  owner  are  subjected  to  such  modi- 
fications as  seem  most  adapted  to  secure  the  best  advantage 
of  all.  Those  who  are  damaged  are  compensated  by  those  who 
are  benefited.  Land  is  actually  taken  and  pecuniary  imposi- 
tions are  levied  although  the  use  is  not  public;  but  neither  the 
power  of  eminent  domain  nor  the  power  of  taxation  is  exercised. 
No  land  outside  the  tract  affected  by  the  common  interest  is 
taken  or  assessed  and  it  is  settled  that  the  compulsory  improve- 
ment of  the  tract  in  the  manner  described  is  a  valid  exercise 
of  the  police  power.5 

67.   The  Improvement  must  be  Local 

A  public  improvement  to  be  the  basis  of  a  special  assess- 
ment must  have  an  actual  and  beneficial  effect  upon  a  well  de- 
fined and  limited  area.  The  only  departure  permissible  from 
the  system  of  general  taxation  by  which  all  the  property  in  a  given 
territorial  unit  is  assessed  at  a  uniform  rate  is  the  local  special 
assessment  justified  by  the  local  character  of  the  improvement. 

5  Lowell  v.  Boston,  111  Mass.  454  (1873);  Wurts  v.  Hoagland,  114  U.  S. 
606  (1885). 


122  Taxation   in    Massachusetts  [part  i 

The  general  benefit  to  all  the  property  in  a  city  or  town  arising 
from  a  particular  public  improvement  must  be  met  by  general 
taxation,1  and  a  system  by  which  for  example  all  the  real  estate 
within  a  city  or  town  was  assessed  for  the  maintenance  of  the 
sewers2  or  all  the  personal  property  for  the  expenses  of  the 
police  department  would  conflict  with  the  provisions  of  the 
constitution  requiring  reasonable  and  proportional  taxation. 
Not  all  classes  of  public  improvements  and  undertakings 
are  proper  objects  of  special  assessments;  but  it  has  been  held 
constitutional  to  levy  a  special  assessment  to  cover  the  whole 
or  part  of  the  cost  of  the  construction  and  alteration  of  public 
streets,3  the  construction  of  sewers  for  house  sewage 4  and  drains 
for  surface  water;5  the  construction  of  sidewalks,6  of  parks7 
and  even  of  railroad  stations.8  Ordinarily  local  benefit  is  not 
derived  from  a  public  improvement  unless  it  is  constructed, 
but  there  may  be  improvements  of  such  a  nature  that  the  mere 
formal  laying  out  confers  a  benefit,  and  the  construction  may 
confer  another  benefit.9  Local  benefit  to  be  the  basis  of  an 
assessment  need  not  be  of  a  permanent  character  and  assess- 
ments have  been  sustained  for  watering  a  street 10  or  for  main- 
taining a  sewer.11  It  is  no  objection  to  the  validity  of  an! 
assessment  that  the  owner  of  the  land  assessed  has  no  legal 
right  to  have  the  improvement  for  which  he  is  assessed  main- 

1  Upham  v.  Worcester,  113  Mass.  97  (1873) ;  Baker  v.  Boston  Elevated 
Railway  Co,  183  Mass.  178,  182  (1903). 

2  Sears  v.  Street  Commissioners  of  Boston,  173  Mass.  350  (1899). 

3  Dorgan  v.  Boston,  12  Allen  223  (1866) ;  Jones  v.  Aldermen  of  Boston,  104 
Mass.  461  (1870). 

4  Downer  v.  Boston,  7  Cush.  277  (1851);  Butler  v.  Worcester,  112  Mass. 
541  (1873). 

5  Beals  v.  James,  173  Mass.  591  (1899). 

6  Lowell  v  Hadley,  8  Met.  180  (1844);  Howe  v.  Cambridge,  114  Mass.  388 
(1874). 

7  Holt  v.  Somerville,  127  Mass.  408  (1879) ;  Foster  v.  Park,  Commissioners, 
133  Mass.  321   (1882). 

8  Sears  v.  Street  Commissioners  of  Boston,  180  Mass.  274  (1902). 

9  Foster  v.  Park  Commissioners  of  Boston,  133  Mass.  321  (1882) ;  New 
England  Hospital  v.  Street  Commissioners  of  Boston,  188  Mass.  88   (1905). 

10  Sears  v.  Aldermen  of  Boston,  173  Mass.  71  (1899);  Phillips  Academy  v. 
Andover,  175  Mass.  118  (1900);  Stark  v.  Boston,  180  Mass.  293  (1902) ;  Corcoran 
v.  Aldermen  of  Cambridge,  199  Mass.  5  (1908) ;  Garden  Cemetery  Corporation 
v.  Baker,  218  Mass.  339  (1914). 

11  Carson  v.  Sewerage  Commissioners  of  Brockton,  175  Mass.  242  (1900) ; 
sustained  182  U.  S.  398  (1901).  See  also  Swigart  v.  Baker,  229  U.  S.  187  (1913) 
holding  that  the  cost  of  maintenance  of  irrigation  works  may  be  specially 
assessed. 


sect.  68]  Special   Assessments  123 

tained  forever.12  A  landowner  may  be  assessed  for  the  recon- 
struction of  a  public  improvement  which  had  been  worn  out 
by  use  although  he  had  been  assessed  for  the  original  construc- 
tion.13 

In  many  instances  in  which  an  assessment  is  levied  for  the 
construction  of  a  street  or  a  sewer,  the  principal  object  of  the 
public  authorities  in  laying  out  the  street  or  the  sewer  is  to 
benefit  the  territory  assessed,  but  it  is  no  reason  for  invalidating 
an  assessment,  that  the  general  public  benefit  was  the  main 
object  of  the  improvement  and  the  local  benefits  were  only 
incidental.  There  is  no  requirement  that  either  the  whole  cost 
of  a  public  improvement  or  none  at  all  must  be  borne  by  those 
benefited,  or  that  the  entire  benefit  must  be  assessed.14  It  is 
only  when  the  general  public  benefit  is  the  sole  result  of  the 
improvement  that  a  special  assessment  cannot  constitutionally 
be  levied.15  When  an  improvement  confers  both  a  general  and 
a  local  benefit,  it  is  of  course  only  the  local  benefit  that  can  be 
specially  assessed;  the  general  benefits  are  not  subjects  of  com- 
pensation from  the  landowner  to  the  public  in  any  form  of 
proceeding.16 

68.   The  Assessment  is  Limited  by  the  Cost  of  the 

Improvement 

A  special  assessment  is  a  tax  and  the  benefit  is  estimated 
only  as  a  means  of  apportioning  the  tax  and  providing  a  fixed 
limit  of  the  amount  to  be  assessed  upon  each  estate.  The  fact 
of  such  benefit  from  the  improvement  furnishes  a  justification 
for  the  imposition  of  a  tax  upon  a  particular  class  of  estates 
instead  of  a  levy  in  the  general  way  of  ordinary  taxation,  but 
such  benefit  would  not  of  itself  warrant  the  exaction  of  money 
by  way  of  compensation  therefor.  The  estates  are  assessed  not 
for  the  benefit  conferred  but  for  the  cost  of  the  public  im- 
provement.    The  essential  point  in  the  proceeding  is  the  ex- 

12  Sears  v.  Street  Commissioners  of  Boston,  180  Mass.  274  (1902).  See 
infra,  §  72. 

13  Sayles  v.  Pittsfield  Board  of  Public  Works,  222  Mass.  93  (1915). 
«  Opinion  of  the  Justices,  231  Mass.  603,  612  (1919). 

15  Briggs  v.  Whitney,  159  Mass.  97  (1893);  Sears  v.  Street  Commissioners 
of  Boston,   180   Mass.  274    (1902). 

16  Upham  v.  Worcester,  113  Mass.  97  (1873) ;  Baker  v.  Boston  Elevated 
Railway  Co.,  183  Mass.  178,  182  (1903).  As  to  the  distinction  between  general 
and  local  benefits,  see  further  infra,  page  672. 


124  Taxation   in   Massachusetts  [part  i 

penditure  for  a  public  service  for  which  taxation  in  some  form 
is  required.1 

In  ascertaining  the  cost  which  is  to  be  the  basis  of  an  assess- 
ment and  the  benefit  in  accordance  with  which  the  whole  or 
part  of  the  cost  is  to  be  assessed  there  is  no  objection  to  joining 
different  features  of  what  are  really  part  of  the  same  public 
improvement.2  While  it  is  not  unconstitutional  to  assess  a 
betterment  before  the  work  is  completed,  based  on  the  esti- 
mated cost  of  the  work,  there  is  no  impropriety  in  waiting  until 
after  the  completion  of  the  work,3  and  an  assessment  is  valid  in  the 
absence  of  statutory  prohibition,  although  made  several  years 
after  such  completion.4  There  is  no  constitutional  objection 
to  the  enactment  of  a  statute  authorizing  the  levying  of  an  as- 
sessment for  a  public  improvement  completed  before  the  enact- 
ment of  the  statute,5  even  if  changes  of  ownership  in  the  lands 
assessed  have  intervened,6  and  the  reassessment  of  an  assess- 
ment held  void  for  irregularity  or  error  7  is  equally  unobjection- 
able. 

If  after  a  public  improvement  has  been  constructed  under 
an  act  authorizing  the  assessment  of  betterments  the  statute 
is  repealed  before  the  betterments  are  collected,  the  repeal  of 
the  statute  does  not  violate  any  constitutional  rights  of  the  city 
or  town.8 

69.   The  Assessment  must  not  Exceed  the  Benefit 

It  has  long  been  a  mooted  point  among  constitutional  law- 
yers in  the  country  at  large  whether  a  special  assessment  can  be  con- 
stitutionally imposed  upon  a  parcel  of  land  in  accordance  with 
a  rule  which  excludes  all  inquiry  upon  the  question  of  actual 

1  Chase  v.  Aldermen  of  Springfield,  119  Mass.  556  (1876). 

2  Lincoln  v.  Street  Commissioners  of  Boston,  176  Mass.  210  (1900) ;  Sears 
v.  Street  Commissioners  of  Boston,  180  Mass.  274  (1902).  See  also  Arnold  v. 
Cambridge,  106  Mass.  352  (1871);  American  Unitarian  Association  v.  Common- 
wealth, 193  Mass.  470  (1907). 

3  Prince  v.  Boston,  111  Mass.  226  (1872). 

4  Fairbanks  v.  Mayor  &  Aldermen  of  Fitchburg,  132  Mass.  42  (1882) ;  Hester 
v.  Collector  of  Brockton,  217  Mass.  422  (1914). 

5  Hall  v.  Street  Commissioners  of  Boston,  177  Mass.  434  (1901).  See  also 
Seattle  v.  Kelleher,  195  U.  S.  356  (1904). 

6  Morse  v.  Street  Commissioners  of  Boston,  197  Mass.  292   (1908).  . 

7  Warren  v.  Street  Commissioners  of  Boston,  187  Mass.  290  (1905).  See 
also  Lombard  v.  West  Chicago  Park  Commissioners,  181  U.  S.  42   (1901). 

s  Stone  v.  Street  Commissioners  of  Boston,  192  Mass.  297  (1906). 


sect.  69J  Special   Assessments  125 

benefits  and  which  may  result  in  the  assessment  of  an  amount 
in  substantial  excess  of  such  benefits.  Many  eminent  author- 
ities, among  them  the  supreme  court  of  the  United  States, 
hold  that  it  is  no  violation  of  the  general  prohibitions  of  the 
Fourteenth  Amendment  to  the  United  States  constitution  or 
of  similar  provisions  of  the  constitutions  of  the  states  if  the 
legislature  designates  a  certain  area  as  benefited  by  a  public 
improvement  and  directs  that  the  whole  or  a  part  of  the  cost 
of  the  improvement  be  assessed  upon  the  various  parcels  of  land 
situated  within  the  designated  area  in  proportion  to  the  size, 
frontage  or  value  of  the  respective  parcels,1  unless  it  plainly 
appears  that  the  so-called  assessment  is  an  abuse  and  not  an 
exercise  of  the  taxing  power  and  a  mere  act  of  confiscation 
under  the  guise  of  law.2 

It  cannot  be  denied  that  the  earlier  decisions  of  the  supreme 
judicial  court  of  Massachusetts,  perhaps  without  treating  the 
question  as  one  requiring  especial  consideration,  sustained  as- 
sessments levied  in  proportion  to  frontage,  or  area  or  value  and 
which  were  not  limited  to  the  benefits  actually  received  by  each 
parcel  of  land  assessed.3  In  the  last  twenty-five  years  however 
it  has  become  definitely  settled  that  the  requirement  of  reason- 
able and  proportional  taxation  in  the  constitution  of  the  com- 
monwealth protects  an  owner  of  land  from  being  obliged  to 
pay  a  special  assessment  in  excess  of  the  benefit  actually  re- 
ceived by  his  land.4     Even  an  assessment  of  the  whole  or  a 

1  French  v.  Barber  Asphalt  Paving  Co.,  181  U.  S.  324  (1901). 

2  Norwood  v.  Baker,  172  U.  S.  269  (1898).  The  Supreme  Court  of  the 
United  States  will  interfere  with  special  assessments  on  the  ground  of  violation 
of  constitutional  rights  secured  by  the  Fourteenth  Amendment  only  when  the 
action  of  the  state  authorities  is  found  to  be  arbitrary,  or  wholly  unequal 
in  operation  and  effect.  Embree  v.  Kansas  City  Road  District,  240  U.  S.  242 
(1916);  Witherell  v.  Ruecking  Construction  Co.,  249  U.  S.  63  (1919);  Hancock 
v.  Muskogee,  250  U.  S.  454  (1919) ;  Branson  v.  Bush.  251  U.  S.  182  (1919) ;  Gold- 
smith v.  Prendergast  Construction  Co.,  252  U.  S.  12  (1920);  Kansas  City 
Southern  Ry.  Co.  v.  Road  Improvement  District,  U.  S.  (1921). 

3  Lowell  v.  Hadley,  8  Met.  180  (1844) ;  Downer  v.  Boston.  7  Cush.  277 
(1851);  Springfield  v.  Gay,  12  Allen  612  (1866);  Workman  v.  Worcester,  118 
Mass.  168  (1875) ;  Keith  v.  Boston,  120  Mass.  108  (1876) ;  Dickinson  v.  Worcester, 
138  Mass.  555  (1885). 

4  Boston  v.  Boston  &  Albany  R.  R.  Co.,  170  Mass.  .95  (1898) ;  Weed  v. 
Boston,  172  Mass.  28  (1898) ;  Sears  v.  Aldermen  of  Boston.  173  Mass.  71  (1899) ; 
Sears  v  Street  Commissioners  of  Boston,  173  Mass.  350  (1899);  Carson  v. 
Sewerage  Commissioners  of  Brockton,  175  Mass.  242  (1900);  Dexter  v.  Boston, 
176  Mass.  247  (1900);  Lorden  v.  Coffey.  178  Mass.  489  (1901);  Sears  v.  Street 
Commissioners  of  Boston,  180  Mass.  274  (1902);  Stark  v.  Boston,  180  Mass. 
293  (1902);  Smith  v.  Mayor  &  Aldermen  of  Worcester,  182  Mass.  232   (1902); 


126  Taxation   in    Massachusetts  [part  i 

specified  portion  of  the  cost  of  a  public  improvement  upon  the 
parcels  benefited  in  proportion  to  the  benefits  actually  received 
cannot  be  sustained  unless  it  can  be  inferred  from  the  statute 
authorizing  such  assessment  that  the  actual  benefit  to  each 
parcel  assessed  is  not  to  be  exceeded.5 

While  some  statutes  have  required  the  assessing  board  to 
determine  the  actual  benefit  to  each  parcel  assessed,  the  courts 
have  recognized  that  the  accurate  ascertainment  of  the  exact 
amount  of  benefit  may  be  no  easy  matter  and  have  sanctioned 
the  adoption  of  rules-of-thumb  which  reach  reasonably  correct 
results,  especially  when  such  rules  are  authorized  by  the  legis- 
lature itself  and  have  been  employed  for  many  years  without 
objection.  Assessments  proportioned  to  the  area,  the  valuation 
or  the  frontage  of  the  parcels  of  land  affected  by  a  public  im- 
provement were  all  sustained  as  valid  before  the  broader  con- 
struction of  the  constitutional  provisions  bearing  upon  the 
question  was  adopted,6  and  it  is  still  held  that  in  thickly  settled 
localities  where  the  different  parcels  of  land  are  of  the  same 
general  character  such  methods  of  assessment  may  be  treated 
as  reasonably  accurate  schemes  of  ascertaining  the  actual  bene- 
fit.7 In  the  absence  of  evidence  that  assessments  by  such 
methods  work  actual  injustice  the  court  will  not  assume  that 
they  are  invalid  or  set  them  aside  at  the  complaint  of  an  owner 
who  is  not  himself  aggrieved;8  but  such  an  assessment  cannot 


White  v.  Gove,  183  Mass.  333  (1903) ;  Harwood  v.  Street  Commissioners  of 
Boston,  183  Mass.  348  (1903);  Cheney  v.  Beverly,  188  Mass.  81  (1905);  Hodgdon 
v.  Haverhill.  193  Mass.  327  (1907);  Corcoran  v.  Aldermen  of  Cambridge,  199 
Mass.  5  (1908);  O'Connell  v.  First  Parish  in  Maiden,  204  Mass.  118  (1910). 

5  Lorden  v.  Coffey,  178  Mass.  489  (1901).  The  court  will  be  loth  to  infer 
that  it  was  not  intended  to  limit  the  assessment  to  the  actual  benefit  in  a 
statute  requiring  proportionate  assessment  and  will  sustain  the  assessment  if 
possible.  Hall  v.  Street  Commissioners  of  Boston,  177  Mass.  434  (1901); 
Cheney  v.  Beverly,  188  Mass.  81   (1905). 

6  In  addition  to  the  cases  cited  supra,  note  3,  see  Boston  v.  Shaw,  1  Met. 
130  (1840);  Wright  v.  Boston.  9  Cush.  223  (1852);  Butler  v.  Worcester,  112 
Mass.  541  (1873);  Howe  v.  Cambridge,  114  Mass.  388  (1874);  Snow  v.  Fitch- 
burg,  136  Mass.  183  (1883). 

7  Sears  v.  Aldermen  of  Boston.  173  Mass.  71  (1899) ;  Smith  v.  Mayor  & 
Aldermen  of  Worcester,  182  Mass.  232  (1902)  ;  White  v.  Gove,  183  Mass.  333 
(1903);  Cheney  v.  Beverly,  188  Mass.  81  (1905);  Hodgdon  v.  Haverhill,  193 
Mass.  327  (1907);  Sayles  v.  Pittsfield  Board  of  Public  Works.  222  Mass.  93 
(1915).  For  a  method  of  fixing  the  rate  of  assessment  for  the  maintenance 
of  a  sewer  that  was  held  valid,  see  Carson  v.  Sewerage  Commissioners  of 
Brockton,  175  Mass.  242  (1900). 

8  Corcoran  v.  Aldermen  of  Cambridge.  199  Mass.  5  (1908) ;  O'Connell  v. 
First  Parish  in  Maiden,  204  Mass.  118  (1910). 


sect.  69J  Special  Assessments  127 

be  constitutionally  enforced  upon  an  estate  which  is  assessed 
more  than  it  is  in  fact  benefited.  An  assessment  made  in  accord- 
ance with  a  method  which  is  plainly  likely  to  result  in  dispro- 
portionate taxation  may  be  treated  as  invalid  in  any  proceeding 
in  which  it  comes  before  the  court,  and  the  application  of  one 
of  the  customary  methods  to  a  whole  municipality  which  con- 
tains districts  of  divergent  characteristics  falls  within  the  scope 
of  this  principle.9 

When  an  assessment  is  authorized  to  be  laid  in  accordance 
with  one  of  the  customary  methods  and  under  such  circum- 
stances that  in  ordinary  cases  it  will  be  just  and  equitable,  and 
provision  is  made  for  appeal,  and  for  abatement  to  constitutional 
proportions  if  in  any  case  injustice  is  wrought  by  the  original 
assessment,  the  statute  authorizing  such  assessment  is  consti- 
tutional and  a  person  who  is  assessed  in  excess  of  the  benefit 
cannot  treat  the  assessment  upon  him  as  invalid  but  is  confined 
to  the  statutory  remedy  of  application  for  abatement.10  If 
however  the  assessment  itself  is  laid  in  such  a  way  as  to  in- 
evitably result  in  disproportionate  taxation  in  cases  that  may 
be  so  frequently  expected  to  arise  that  it  can  fairly  be  said  that 
the  assessment  was  imposed  without  regard  to  the  limitations 
of  the  constitution,  there  is  considerable  doubt  whether  a  pro- 
vision for-  appeal  and  abatement  will  save  the  whole  assessment 
from  being  treated  as  unconstitutional  and  void.11 

When  the  legislature  itself  designates  a  district  as  benefited  by 
a  certain  public  improvement  and  authorizes  the  assessment  of 
the  cost  upon  the  land  within  the  district  according  to  value, 
area  or  frontage,  the  statute  is  constitutional  unless  it  actually 
works  injustice.  The  determination  of  the  district  to  be  assessed 
may  however  be  left  by  the  legislature  to  the  decision  of  a 
local  board  of  commissioners,  and  may  be  made  to  consist  of 
such  lands,  and  such  only,  as  the  commissioners  may  decide 
to  have  been  benefited.12  When  however  the  legislature  passes 
a  law  of  general  future  application  allowing  an  assessment  to 
be  made  upon  a  district  determined  by  a  local  board  in  propor- 

9  Dexter  v.  Boston,  176  Mass.  247  (1900);  White  v.  Gove,  183  Mass.  333 
(1903);  Smith  v.  Boston,  194  Mass.  31   (1907). 

10  Stark  v.  Boston,  180  Mass.  293   (1902). 

11  White  v.  Gove,  183  Mass.  333  (1903) ;  Corcoran  v.  Aldermen  of  Cam- 
bridge, 199  Mass.  5  (1908). 

12  Bauman  v.  Ross,  167  U.  S.  548,  590   (1897). 


128  Taxation   in    Massachusetts  [part  i 

tion  to  value,  area  or  frontage,  the  law  itself  is  unconstitutional 
unless  it  can  be  inferred  from  something  contained  therein  that 
the  assessment  authorized  is  limited  to  what  can  constitutionally 
be  imposed.  There  is  however  no  objection  to  a  statute  which 
authorizes  a  local  board  to  impose  "just,"  "reasonable"  or  "equi- 
table" assessments,  and  if  the  board  makes  the  assessment 
according  to  value,  area  or  frontage  in  a  district  in  which  such  a 
method  is  suitable,  the  assessment  itself,  in  the  absence  of 
evidence  of  actual  injustice,  is  valid.13 

70.   The  Owner  is  Entitled  to  a  Hearing 

It  is  now  well  settled  that  no  statute  is  constitutional  which 
authorizes  the  final  and  conclusive  determination  of  the  amount 
of  the  assessment  upon  each  parcel  of  land  without  giving  the 
owner  of  such  land  an  opportunity  for  a  hearing.1  The  right 
to  a  hearing  is  not  satisfied  by  granting  the  taxpayer  an  oppor- 
tunity to  file  written  objections,  and  he  must  be  allowed  to 
appear  in  person  and  support  his  contentions  by  argument  and 
proof.2  It  is  not  however  necessary  that  the  owner  be  heard 
when  the  assessment  is  made  in  the  first  instance  if  he  is  given 
an  opportunity  for  application  for  abatement  or  for  appeal.3 

It  is  sometimes  provided  that  the  application  for  abatement 
may  be  heard  by  a  jury,  but  it  is  well  settled  that  there  is  no 
constitutional  right  to  a  jury  trial  in  such  cases,4  or  even  to  a 
hearing  before  a  judicial  tribunal.  The  hearing  may  be  before 
the  board  which  made  the  original  assessment,5  or  before  another 
board  which  while  acting  judicially  in  this  instance  is  not  a  court 
and  is  composed  of  executive  officers.0  The  findings  of  fact  of 
such  boards  are  conclusive  and  cannot  be  contested  in  courts 

13  Howe  v.  Cambridge,  114  Mass.  388  (1874);  Carson  v.  Sewerage  Com- 
missioners of  Brockton,  175  Mass.  242  (1900). 

1  Sears  v.  Street  Commissioners  of  Boston.  173  Mass.  350  (1899);  Okla- 
homa Ry.  Co.  v.  Severus  Paving  Co.,  251  U.  S.  104  (1919). 

2  Londoner  v.  Denver,  210  U.  S.  373  (1903). 

3  Butler  v.  Worcester,  112  Mass.  541  (1873) ;  Weed  v.  Boston.  172  Mass. 
28  (1898);  Sears  v.  Street  Commissioners  of  Boston,  173  Mass.  350  (1899); 
Hodge  v.  Muscatine  County,  196  U.  S.  281  (1905). 

*  Palmer  v.  McMahon,  133  U.  S.  660  (1890);  Bauman  v.  Ross.  167  U.  S. 
548,  593  (1897) ;  Howe  v.  Cambridge,  114  Mass.  388  (1874) ;  Chapin  v.  Worcester, 
124  Mass.  464  (1878);  Grace  v.  Newton  Board  of  Health,  135  Mass.  490,  494 
(1883). 

5  Corcoran  v.  Aldermen  of  Cambridge,  199  Mass.  5  (1908);  Hibben  v. 
Smith,  191  U.  S.  322  (1903);  Farncomb  v.  Denver,  252  U.  S.  7  (1920). 

6  Stark  v.  Boston,  180  Mass.  293  (1902). 


sect.  71]  Special  Assessments  129 

of  law.  The  law  must  entrust  the  final  disposition  of  such 
questions  to  some  one  and  it  is  at  least  as  satisfactory  to  en- 
trust it  to  a  tribunal  of  experts  responsible  to  the  people  as 
to  a  court  or  jury. 

In  a  state  such  as  Massachusetts,  in  which  it  is  held  that  the 
assessment  cannot  constitutionally  exceed  the  benefit,  the  owner 
of  land  assessed  is  entitled  to  a  hearing  upon  the  amount  of 
benefit  which  his  land  received.  He  is  not  entitled  to  be  heard 
upon  the  necessity  of  the  proposed  improvement  or  upon  its 
cost,7  or  upon  the  rate  of  assessment.8 

71.  Assessments  under  the  Police  Power 

There  is  one  form  of  pecuniary  imposition  which,  although 
it  to  some  extent  assumes  the  form  and  characteristics  of  a 
special  assessment,  is  not  an  exercise  of  the  taxing  power  and 
is  not  subject  to  the  constitutional  limitations  which  apply  to 
that  branch  of  sovereignty.  It  is  well  settled  that  when  an 
owner  of  land  suffers  it  to  fall  into  such  a  condition  that  it 
endangers  the  health  and  safety  of  the  community  and  thereby 
constitutes  a  public  nuisance,  the  state  may,  in  the  exercise 
of  what  is  commonly  called  the  police  power,  compel  him  to 
abate  the  nuisance  at  his  own  expense.  As  an  incident  to  this 
power  and  as  a  convenient  means  of  putting  it  to  practical 
accomplishment,  if  the  owner  declines  to  abate  the  nuisance 
the  state  may  do  the  work  itself  and  recover  the  cost  from  the 
owner,  and  as  a  means  of  collecting  the  cost  may  make  it  a  lien 
on  the  land  and  enforce  the  lien  in  the  same  manner  as  liens 
for  taxes  are  enforced.  In  such  a  case  whether  an  estate  is 
benefited  to  the  extent  of  the  cost  assessed  upon  it  is  of  no  im- 
portance.1 

It  is  perhaps  as  an  exercise  of  this  power  that  owners  or  occu- 
pants of  houses  abutting  upon  public  ways  are  compelled  to 
clear  the  sidewalks  of  snow  at  their  own  expense  although  such 
requirement  seems  to  go  beyond  the  usual  exercise  of  that 
branch  of  the  police  power,  especially  if  the  fee  of  the  street 

7  Collins  v.  Mayor  &  Aldermen  of  Holyoke,  146  Mass.  298  (1888);  Allen 
v.  Charlestown,  111  Mass.  123  (1872);  Prince  v.  Boston,  111  Mass.  226  (1872); 
Holt  v.  Somerville,  127  Mass.  408  (1879). 

8  Carson  v.  Sewerage  Commissioners  of  Brockton,  175  Mass.  242  (1900). 

1  Nickerson  v.  Boston,  131  Mass.  306  (1881).  See  also  Salem  v.  Eastern 
R.  R.  Co.,  98  Mass.  431  (1868);  Cambridge  v.  Munroe,  126  Mass.  496  (1879). 


130  Taxation   in    Massachusetts  [part  i 

is  in  the  public.  It  is  perhaps  best  classified  as  one  of  the 
many  instances  in  which  established  custom  and  general  con- 
venience justify  the  infliction  of  a  trivial  burden  regardless  of 
the  strict  letter  of  the  constitution.2 

Assessments  for  the  cost  of  the  construction  of  sidewalks 
have  been  justified  as  an  exercise  of  the  police  power  :i  and  it  has 
indeed  been  a  very  common  practice  to  assess  each  owner  the 
entire  cost  of  the  sidewalk  in  front  of  his  premises  regardless 
of  benefits;  but  to  take  a  man's  land  by  eminent  domain  for 
a  public  way  and  then  compel  him  to  construct  a  sidewalk  at 
his  own  expense  merely  because  the  public  would  otherwise 
find  the  walking  muddy  seems  to  be  going  a  little  too  far  to 
escape  unconstitutionality  unless  the  assessment  is  made  under 
the  protection  of  the  limitations  which  apply  to  special  assess- 
ments under  the  taxing  power. 

Compulsory  joint  improvement  of  land  in  which  several 
persons  have  a  common  interest  can  only  be  effected  by  the 
assessment  of  the  cost  of  the  work  and  of  the  land  damages 
upon  the  persons  benefited,  but  as  has  already  been  explained, 
such  assessment  is  made  under  the  police  power  and  is  not 
subject  to  the  limitations  which  control  the  power  of  taxation.4 
It  is  however  to  be  noted  that  such  an  undertaking  is  wholly 
for  the  benefit  of  the  owners  affected,  and  if  an  assessment  of 
the  cost  proportioned  to  the  benefits  would  exceed  the  actual 
benefit  the  improvement  would  not  be  attempted  at  all. 

72.   Rights  of  the  Owner  of  Land  Assessed 

When  a  public  improvement  has  been  established  and  con- 
structed and  a  part  or  the  whole  of  the  cost  has  been  assessed 
upon  adjoining  land  specially  benefited  by  the  improvement  a 
serious  question  may  arise  if  the  public  authorities  subsequently 
discontinue  the  improvement  or  devote  the  land  occupied  by 
it  to  a  different  use  of  a  character  which  is  not  beneficial  to 
neighboring  land.    If  the  purpose  for  which  the  land  was  origi- 

2  Goddard,  Petitioner,  16  Pick.  504  (1835).  See  G.  L.  c.  85  §  6,  infra 
page  727.  authorizing  towns  to  assess  upon  abutting  estates  the  whole  or  part 
of  the  cost  of  removing  snow  from  sidewalks.  An  ordinance  requiring  street 
railway  companies  to  sprinkle  the  streets  between  and  near  the  rails  is  a  valid 
exercise  of  the  police  power.  Pacific  Gas  etc.  Co.  v.  Sacramento.  251  U.  S. 
22  (1919). 

3  See  French  v.  Barber  Asphalt  Paving  Co.,  181  U.  S.  324.  363  (1901). 

4  Supra  §  66,  and  Lowell  v.  Boston,  111  Mass.  454,  469  (1873). 


sect.  72]  Special   Assessments  131 

nally  taken  and  the  benefits  assessed  was  merely  colorable,  and 
the  assessment  in  effect  a  fraud  upon  the  taxpayers,  no  doubt 
the  courts  would  furnish  some  form  of  redress;  but  when,  after 
a  park  has  been  built  and  betterments  assessed  in  good  faith 
and  the  park  enjoyed  for  many  years,  the  public  authorities 
under  legislative  sanction  determine  to  erect  a  public  building 
upon  the  park,  the  owners  of  the  land  assessed  have  no  legal 
rights  in  the  continuance  of  the  park  as  an  open  space  which 
will  entitle  them  to  have  the  erection  of  the  building  restrained.1 

1  Thayer  v.  Boston,  206  Fed.  Rep.  969  (1913). 


PART  II 

COMMENTARIES  ON  THE  GENERAL  LAWS 
RELATING  TO  TAXATION 

STATEMENT 

SHOWING   THE   SOURCES   FROM   WHICH   PUBLIC   REVENUES  ARE 

RAISED    IN    MASSACHUSETTS    AND    THE    DISPOSITION 

MADE    OF    THESE    REVENUES    WITH    AN 

ABSTRACT   OF   THE   TAX   LAWS 

The  taxes  authorized  by  law  for  state,  county  and  municipal  pur- 
poses are  the  following: 

(1)  Poll  tax  of  two  dollars  per  annum  on  each  male  resident  of 
the  commonwealth,  assessed  directly  by  the  cities  and  towns  and  re- 
tained by  them  for  their  own  use,  except  that  in  determining  the  valua- 
tion of  each  city  and  town  for  the  purposes  of  the  state  tax,  polls  are 
included  at  one-tenth  of  a  mill  each  in  every  one  thousand  dollars 
of  state  tax. 

(2)  Tax  on  real  estate  and  tangible  personal  property,  assessed 
by  the  cities  and  towns,  each  city  and  town  assessing  what  is  required 
for  its  own  use  and  for  its  share  of  the  county  and  state  tax. 

(3)  Income  tax,  assessed  by  the  state  at  the  rate  of  six  per  cent  on 
the  income  from  certain  specified  classes  of  intangible  property,  three 
per  cent  on  the  excess  of  gains  over  losses  from  the  sale  of  intangible 
property,  one  and  one-half  per  cent  upon  business  income  and  one  and 
one-half  per  cent  upon  the  income  from  annuities,  the  whole  amount 
derived  from  the  income  tax  in  excess  of  the  cost  of  collection  being 
distributed  to  the  cities  and  towns.  A  part  is  distributed  in  proportion 
to  the  amounts  paid  by  them  as  salaries  for  the  higher  paid  school 
teachers,  as  an  inducement  to  increasing  the  salaries  of  their  school 
teacKers,  and  of  the  remainder  a  gradually  diminishing  part  is  paid  in 
proportion  to  the  intangibles  formerly  taxed  in  each  city  or  town  and 
a  gradually  increasing  part  in  proportion  to  the  value  of  the  real  estate 
and  tangible  personal  property  in  each  city  or  town. 

(4)  Tax  on  domestic  business  corporations,  an  excise  tax,  assessed 
by  the  state,  of  five  dollars  per  thousand  upon  the  value  of  the  aggre- 
gate capital  stock  in  excess  of  property  locally  taxed  and  property 
that  is  non-taxable  or  situated  outside  the  state,  and  two  and  one- 
half  per  cent  upon  the  net  income  derived  from  business  carried  on 
within  the  state;  one-sixth  of  this  tax  is  retained  by  the  state  and 
the  remainder  distributed  to  the  cities  and  towns  where  the  business 
of  the  corporations  is  carried  on. 

133 


134  Taxation   in   Massachusetts  [part  h 

(5)  Tax  on  foreign  business  corporations  doing  business  in  this 
commonwealth,  similar  to  the  tax  on  domestic  business  corporations 
and  distributed  in  the  same  way. 

(6)  Tax  on  insurance  companies,  an  excise  tax  assessed  by  the 
state  and  based  upon  the  premium  income,  and  in  case  of  life  in- 
surance, upon  the  net  value  of  the  policies;  retained  wholly  by  the 
state. 

(7)  Tax  on  savings  banks,  including  savings  departments  of  trust 
companies,  of  one-half  of  one  per  cent  of  the  average  deposits,  except- 
ing so  much  of  the  deposits  as  are  invested  in  real  estate,  mortgages 
of  real  estate,  tax-exempt  bonds  and  the  stock  of  trust  companies;  an 
excise  tax  assessed  and  retained  wholly  by  the  state. 

(8)  Tax  on  national  bank  stock,  a  property  tax  assessed  by  the 
cities  and  towns  at  the  local  rate  upon  the  aggregate  value  of  the 
shares  of  each  bank  in  the  place  where  it  is  located  and  distributed 
among  the  cities  and  towns  in  accordance  with  the  residence  of  the 
stockholders,  the  portion  attributable  to  stockholders  who  are  non-resi- 
dents of  the  state  being  paid  to  the  state. 

(9)  Tax  on  trust  companies,  an  excise  tax  assessed  by  the  state 
on  the  value  of  the  aggregate  capital  stock  of  each  company,  deducting 
property  locally  taxed,  and  distributed  to  the  cities  and  towns  in  ac- 
cordance with  the  residence  of  the  stockholders,  the  amount  attrib- 
utable to  stockholders  who  are  not  residents  of  the  state  being  re- 
tained by  the  state. 

(10)  Tax  on  street  railway  companies,  an  excise  tax  assessed  by 
the  state,  based  upon  the  value  of  the  aggregate  capital  stock  of  each 
company,  deducting  property  locally  taxed,  and  the  whole  being  dis- 
tributed to  the  cities  and  towns  in  proportion  to  the  length  of  the 
tracks  operated  by  each  company  in  each  town. 

(11)  Tax  on  railroad,  telephone  and  telegraph  companies,  an  ex- 
cise tax  assessed  by  the  state  and  based  upon  the  value  of  the  aggre- 
gate capital  stock  of  each  company,  deducting  property  locally  taxed; 
the  portion  of  the  tax  attributable  to  the  shares  of  non-residents  being 
retained  by  the  state  and  the  remainder  distributed  among  all  the 
cities  and  towns  of  the  state  in  proportion  to  the  total  assessed  value 
of  property  actually  taxed  in  each  city  or  town. 

(12)  Tax  on  gas,  electric  light  and  water  companies,  an  excise  tax 
assessed  by  the  state,  based  upon  the  aggregate  value  of  the  capital 
stock  of  each  company,  deducting  property  locally  taxed ;  the  portion 
of  the  tax  attributable  to  the  shares  of  non-residents  is  retained  by  the 
state  and  the  balance  distributed  to  the  towns  where  the  business  of 
the  corporations  is  carried  on. 

(13)  Tax  on  other  public  service  companies,  an  excise  tax  as- 
sessed by  the  state  and  based  upon  the  aggregate  value  of  the  capital 
stock  deducting  property  locally  taxed,  distributed  to  the  cities  and 
towns  in  accordance  with  the  residence  of  the  shareholders  in  the  re- 
spective companies  and  the  portion  of  the  tax  attributable  to  non-resi- 
dents being  retained  by  the  state. 


ABSTRACT     OF     THE     TAX     LAWS  135 

(14)  Inheritance  tax,  an  excise  tax  assessed  by  the  state  on  the 
passing  of  property  of  deceased  persons  by  will  or  the  laws  regulating 
intestate  succession,  graded  in  proportion  to  the  amount  of  the  legacy 
or  distributive  share  and  the  distance  of  relationship  of  the  beneficiary 
to  the  deceased,  the  maximum  being  ten  per  cent;  the  whole  of  this 
tax  is  retained  by  the  state. 

(15)  Stock  transfer  tax,  a  stamp  tax  on  the  sale  of  shares  of 
two  cents  on  each  one  hundred  dollars  of  face  value;  all  this  tax  is 
retained  by  the  state. 

(16)  Motor  vehicle  tax,  an  excise  tax  on  the  use  of  motor  vehicles, 
assessed  by  the  state  and  proportioned  according  to  the  horsepower  or 
capacity  of  the  vehicle;  the  whole  of  this  tax  is  retained  by  the  com- 
monwealth and  used  for  the  maintenance  of  state  highways. 

(17)  Tax  on  boxing  matches,  an  excise  tax  of  five  per  cent  of 
the  gross  receipts  of  licensed  boxing  matches,  collected  by  the  state 
and  distributed  to  the  cities  and  towns  in  which  the  matches  are  held. 

(18)  Miscellaneous  revenue.  In  addition  to  the  foregoing  there 
is  a  large  amount  of  miscellaneous  revenue  derived  from  fees,  costs, 
interest,  sale  of  property  and  the  rendering  of  various  forms  of  serv- 
ices ;  but  none  of  such  revenue  is  derived  from  taxation,  using  the  word 
in  its  proper  sense. 

The  rate  of  the  excise  tax  levied  under  paragraphs  9,  10,  11,  12  and 
13  is  the  average  local  tax  rate  on  real  and  tangible  personal  property 
throughout  the  state  for  the  preceding  three  years,  and  in  1920 
amounted  to  $21.34  per  thousand. 

State  Taxes.  The  expenses  of  the  state  government  at  the  present 
time,  exclusive  of  the  payments  on  the  war  bonus  account  which 
are  met  by  special  taxes,  but  including  interest  on  the  public  debt, 
amount  to  a  little  over  $40,000,000  annually.  This  amount  is  raised 
primarily  by  the  excise  taxes  described  above,  which  are  levied  in 
accordance  with  rates  fixed  by  statutes  of  a  permanent  character  re- 
maining in  force  until  amended  or  repealed  by  the  legislature,  although 
the  amount  received  from  these  sources  varies  from  year  to  year  in 
accordance  with  business  conditions  or  the  amount  of  use  which  is 
made  by  individuals  or  corporations  of  the  franchises  or  privileges 
taxed.  Each  year  near  the  close  of  the  session  of  the  legislature  the 
amount  by  which  the  appropriations  of  the  legislature  required  to  be 
expended  during  the  year  will  exceed  the  estimated  receipts  from  the 
excise  taxes,  license  fees  and  other  sources  of  revenue  during  the  year 
is  determined,  and  the  amount  thus  ascertained  is  assessed  on  the 
cities  and  towns  in  the  state  in  proportion  to  their  valuation  in  real 
estate  and  tangible  personal  property  and  is  in  turn  assessed  by  them 
as  a  direct  tax  on  these  two  classes  of  property  in  the  same  manner 
as  the  local  taxes  are  assessed  and  the  proceeds  turned  over  to  the 
state.  This  direct  tax  is  known  as  the  "  state  tax  "  and  is  what  is 
called  in  parliamentary  language  a  deficiency  bill. 

In  the  year  1920  the  principal  revenues  of  the  state  other  than  the 
so-called  state  tax  were  in  round  numbers  as  follows: 


136  Taxation   in    Massachusetts  [part  ii 

Corporation  Taxes: 

Domestic  business  corporations  (share  of  the  state) . .  $2,253,000 

Foreign  business  corporations  (share  of  the  state) 496,000 

National  bank  tax  (share  of  the  state)    816,000 

Public     service     corporations     and     trust     companies 

(share    of    the    state) 580,000 

Savings  banks    2,220,000 

Insurance    companies    2,160,000 

Miscellaneous    12,000 

Total  corporation  taxes   $  8,537,000 

Inheritance   taxes    4,375,000 

Stock   transfer  taxes    264,000 

Motor  vehicle  fees   3,270,000 

Total  derived  by  the  state  from  taxation  $16,446,000 

Revenue  other  than  taxes    6,225,000 

Total     $22,671,000 

As  this  fell  short  of  the  required  amount  by  over  $17,000,000,  in 
order  to  avoid  too  great  an  increase  in  the  state  tax  over  the  preced- 
ing year  a  special  tax  on  the  income  of  corporations  was  levied  for 
the  year  1920  only,  which  produced  a  revenue  of  $3,165,000,  and  the 
state  tax  was  fixed  at  $14,000,000. 

In  addition  to  these  taxes  there  are  the  special  taxes  imposed  in 
1919  for  a  period  of  five  years  to  meet  the  bonds  issued  to  raise  money 
for  the  bonuses  paid  to  the  soldiers  who  served  in  the  World  War, 
assessed  as  an  additional  state  tax,  additional  poll  tax,  additional  in- 
heritance tax,  additional  income  tax  and  additional  tax  on  corpora- 
tions; these  taxes  produced  $4,300,000  in  1920. 

Excluding  the  revenue  from  the  war  bonus  tax,  and  about 
$1,500,000  of  the  other  revenue  used  for  special  purposes  not  likely 
to  recur  annually,  the  remainder,  amounting  to  approximately  $38,- 
500,000,  was  expended  in  substantially  the  following  proportions: 

Classification  Percentages 

Legislative 2.3 

Judiciary    2.3 

Administrative  by  elective  officials  2.4 

Other  general  administrative  and  miscellaneous 4.0 

Militia  and '  expenses  of  wars    5.5 

Agriculture    and   conservation    2.5 

Banking,   insurance,   corporations   and   taxation"  2.6 

Education    10.3 

Civil  service,  labor  and  industrial  relations   1.8 

Mental    diseases,    institutions    21.0 

Correction    3.4 

Public   welfare    (charitable)     11.4 

Public    health    4.1 

Public  safety  and  public  utilities 1.4 

Public    works    15.8 

Interest    and    debt    9-2 

County  Tax.  No  excise  taxes  are  collected  by  or  distributed  to 
the  counties.    The  revenue  of  each  county  is  raised  in  part  by  miscel- 


ABSTRACT     OF     THE     TAX     LAWS  137 

laneous  fees  and  charges  and  the  remainder  by  a  county  tax,  the 
amount  of  which  is  determined  each  year  by  a  resolve  of  the  legis- 
lature, and  which  is  assessed  upon  the  cities  and  towns  within  the 
county  in  proportion  to  their  valuation  as  established  for  the  purposes 
of  the  state  tax,  and  assessed  in  turn  by  the  cities  and  towns  as  part 
of  their  direct  tax  on  polls,  real  estate  and  tangible  personal  property. 
In  1920  the  revenues  of  the  counties  of  the  state  were  as  follows: 

County    tax    $4,644,356 

Miscellaneous 2,364,164 

$7,008,520 

This  sum  is  expended  for  highways  and  bridges,  courts  and  regis- 
tries and  county  buildings  and  institutions. 

Municipal  Taxation.  Each  city  or  town  receives  from  the  state 
a  distributive  share  of  the  state  income  tax  and  of  the  excise  taxes 
upon  business  corporations,  domestic  and  foreign,  from  public  service 
corporations  and  trust  companies.  It  also  receives  its  share  of  the 
tax  on  national  bank  stock,  miscellaneous  revenue  from  various 
sources,  such  as  license  fees,  interest  on  bank  deposits,  sale  of  property, 
special  assessments  and  the  like  and  in  many  instances  revenue  from 
public  service  enterprises,  such  as  public  water  supply  or  gas  or  elec- 
tric lighting  plants. 

After  ascertaining  the  amount  required  to  be  raised  for  municipal 
purposes  and  for  the  town's  share  of  the  state  and  county  tax,  and  for 
assessments  placed  upon  the  town  by  the  state  for  metropolitan  parks 
and  similar  purposes,  and  deducting  therefrom  the  estimated  receipts 
from  income  and  corporation  taxes  and  miscellaneous  revenue,  the  bal- 
ance is  raised  by  a  direct  tax  upon  all  the  taxable  real  estate  and 
tangible  personal  property  within  the  town  at  a  rate  fixed  by  divid- 
ing the  aggregate  valuation  of  such  property  by  the  amount  to  be 
raised. 

In  1920  the  total  amount  required  to  be  raised  for  maintenance 
and  the  requirements  of  the  public  debt  and  for  assessments  by  the 
state,  other  than  the  state  and  county  tax,  in  all  the  cities  and  towns  of 
the  state  amounted  to  approximately  $165,161,000. 

This  amount  was  raised  as  follows: 

The  amount  distributed  among  the  cities  and  towns  on  account  of 
the  1920  income  tax  amounted  to  approximately  $  16,400,000 

The  amount  distributed  among  the  cities  and  towns  on  account  of 
the  1920  corporation  tax  amounted  to  approximately   15,261,000 

This  item  was  made  up  as  follows: 

Domestic  business  corporations    $10,237,000 

Foreign  business  corporations   2,381,000 

Street   railways    200,000 

Public  service  corporations  and  trust  companies      1,490,000 
National  banks  (banks  located  in  other  towns)         953,000 

Tax  on  polls  and  on  real  estate  and  tangible  personal  property 123,500,000 

Miscellaneous  revenue    10,000,000 

165,161,000 


138  Taxation   in    Massachusetts  [part  n 

This  sum  was  expended  in  substantially  the  following  proportions: 

Classification  Percentages 

General    Government    4.17 

Protection  of  persons  and  property    12.40 

Health   and  sanitation    7.07 

Highways     9.87 

Charities     5.81 

Soldiers'  benefits    2.15 

Schools    22.79 

Libraries 1 .38 

Recreation     2.11 

Pensions    80 

Unclassified     1.17 

Public  service  enterprises  6.83 

Cemeteries     56 

Administration  of  trust  funds  .01 

Interest     11.50 

Debt  from  revenue   9.11 

Transfers  to  sinking  funds  from  revenue  2.27 

100.00 
Summary 
State  Taxes: 

Corporation  taxes  and  other  excises  $  16,446,000 

Direct  state  tax    14,000,000 

Special   corporation  tax    3,165,000 

War  bonus  tax   4,300,000 

$37,911,000 

County  Taxes    4,644,000 

Municipal  Taxes: 

Income  tax,  distribution    $  16,400,000 

Income  tax,  cost  of  collection  400,000 

Corporation   taxes    15,261,000 

Polls  and  property    123,500,000 

155,561,000 

Federal  Taxes  collected  in  Massachusetts  in  fiscal  year  $198,116,000 

ending  June  30,  1921   258,896,000 

Total  raised  by  taxation    $457,012,000 

The  increase  in  taxation  in  this  commonwealth  in  the  last  ten 
years  is  shown  by  the  following  table: 

1910  1920 

Direct  state  tax $  5,500,000  $  14,000,000 

Other  taxes  for  state  purposes  8,218,000  23,911,000 

County    taxes    2,700,000  4,644,000 

Cities  and  towns: 

Polls  and  property   60,400,000  123,500,000 

Corporation  taxes  and  other  sources  9,000,000  32,061,000 

Total  under  state  authority  $85,818,000  $198,116,000 

Internal  revenue  taxes  under  authority  of  the  United 

States  collected  in  Massachusetts   7,397,000  258,896,000 

$93,215,000  $457,012,000 


THE  PROVISIONS  OF  THE  GENERAL  LAWS 
RELATING  TO  TAXATION 

CHAPTER  4 
STATUTES 

Meaning  of  Certain  Words  in  Construing  Statutes 

Section  7.  In  construing  statutes  the  following  words  shall  have 
the  meanings  herein  given,  unless  a  contrary  intention  clearly  appears. 

Third,  "  Assessor  "  shall  include  any  selectman  acting  as  assessor 
and  any  person  chosen  in  accordance  with  law  to  perform  the  duties 
of  an  assessor. 

Thirty-fifth,  "Valuation,"  as  applied  to  a  town,  shall  mean  the 
valuation  of  such  town  as  determined  by  the  last  preceding  apportion- 
ment made  for  the  purposes  of  the  state  tax. 

CHAPTER   6 

CERTAIN   OFFICERS   UNDER  THE   GOVERNOR 

AND    COUNCIL 

* 

Board  of  Appeal 

Section  21.  The  state  treasurer,  the  state  auditor  and  a  member 
of  the  council  designated  by  the  governor,  shall  constitute  the  board 
of  appeal  from  decisions  of  the  commissioner  of  corporations  and 
taxation. 

CHAPTER    14 

DEPARTMENT   OF   CORPORATIONS   AND   TAXATION 

This  chapter  provides  for  a  department  of  corporations  and 
taxation  in  charge  of  a  commissioner  and  consisting  of  divisions, 
each  under  the  charge  of  a  director,  the  divisions  authorized 
relating  respectively  to  the  income  tax,  corporations,  inheri- 

139 


140  Taxation  in   Massachusetts 

[G.L.c.  14 
tance  taxes,  local  taxation,  accounts  and  such  other  divisions 
as  the  commissioner  determines.  It  provides  for  the  compensa- 
tion and  duties  of  these  and  other  officers  and  employees  in  the 
department,  and  in  section  9,  authorizes  the  commissioner  to 
divide  the  commonwealth  into  income  tax  districts. 

The  office  of  tax  commissioner  was  created  in  1865  by  the 
same  statute  that  established  the  franchise  tax  upon  domestic 
corporations,  and  for  many  years  the  principal  functions  of  the 
tax  commissioner  related  solely  to  this  tax1  and  to  the  appor- 
tionment of  the  state  tax.2  Formerly  the  treasurer  of  the  com- 
monwealth acted  as  tax  commissioner  and  the  deputy  tax 
commissioner  was  commissioner  of  corporations ;  but  in  1890  the 
treasurer  ceased  to  act  as  tax  commissioner  and  the  tax  com- 
missioner thereafter  acted  as  commissioner  of  corporations.  Be- 
fore 1898  the  tax  commissioner  had  little  to  do  with  the 
assessment  of  local  taxes  by  the  assessors  of  the  various  cities 
and  towns,  except  when  their  valuation  of  the  real  estate  and 
machinery  of  domestic  corporations  conflicted  with  his  valuation 
for  the  purposes  of  the  corporate  franchise  tax.3  In  1898  the 
tax  commissioner  was  given  power  to  visit  any  city  or  town 
within  the  commonwealth  to  inspect  the  work  of  the  assessors 
and  advise  them  as  to  their  duties,  and  ten  years  later  he  was 
given  power  to  appoint  three  supervisors  of  assessors  who  were 
to  furnish  the  local  assessors  with  information  concerning  tax- 
able property  within  their  jurisdiction  and  to  direct  the  assessors 
to  make  use  of  such  information  as  he  might  deem  necessary.4 
This  last  statute  was  of  great  importance  during  the  years 
preceding  the  adoption  of  the  income  tax,  when  the  taxing 
authorities  were  engaged  in  a  well  organized  but  inevitably 
futile  effort  to  enforce  the  law  which  required  the  taxation 
of  intangible  personal  property  at  its  capital  value.5 

The  duties  of  the  commissioner  have  been  increased  in  many 
other  ways  in  recent  years,  such  as  the  furnishing  of  books  and 
blanks  to  the  local  assessors,  which  was  formerly  the  duty  of 
the  secretary  of  the  commonwealth,6  and  in   1907  important 

1  G.  L.  c.  63,  infra  page  505. 

2  G.  L.  c.  58  §  §  9,  10,  infra  page  167. 

3  G.  L.  c.  59  §  74,  infra  page  303 ;  c.  63  §  57,  infra  page  580. 

4  G.  L.  c.  58  §  §  1-8  inc.,  infra  page  165. 

5  See  infra  page  428. 

6  G.  L.  c.  59  §  45;  infra  page  213. 


Department  of  Public  Utilities  141 

G.  L.  c.  25] 

duties  in  relation  to  the  inheritance  tax  which  were  formerly 
in  the  hands  of  the  treasurer  were  given  to  the  tax  commissioner.7 
In  1916  the  adoption  of  the  income  tax  act,8  which  inci- 
dentally relieved  the  tax  commissioner  to  a  great  extent  of  his 
duties  in  connection  with  the  supervision  of  local  taxation, 
imposed  an  important  new  set  of  duties  upon  him,  involving 
the  entire  administration  of  the  income  tax  law. 

In  1919,  in  connection  with  the  reorganization  of  the  execu- 
tive and  administrative  departments  of  the  commonwealth  made 
necessary  in  order  to  comply  with  the  Sixty-sixth  Amendment 
to  the  constitution  of  the  commonwealth,  the  office  of  tax  com- 
missioner was  abolished,  and  a  commissioner  of  corporations  and 
taxation  substituted,  having  all  the  duties  of  the  tax  commis- 
sioner, and  control  over  the  division  of  accounts  as  well.9 

CHAPTER   25 

DEPARTMENT   OF  PUBLIC   UTILITIES 

Assessment  of  Expenses  of  Department  upon  Corporations 

and  Municipalities 

Section  11  provides  for  the  assessment,  on  or  before  July 
first  in  each  year,  of  the  expenses  of  the  department  of  public 
utilities  in  regulating  gas,  electric  and  water  companies  and  mu- 
nicipal lighting  plants  upon  the  corporations  and  municipali- 
ties maintaining  the  same,  such  assessment  to  be  apportioned 
among  the  corporations  according  to  gross  earnings  and  among 
the  municipalities  according  to  expenses,  and  to  be  collected 
from  corporations  in  the  same  manner  as  the  corporation  tax 
and  from  cities  and  towns  in  the  same  manner  as  the  state  tax. 

Section  16  provides  for  the  assessment  of  the  expenses  of 
the  department  in  inspecting  gas  and  gas  meters  upon  gas  com- 
panies and  municipalities  maintaining  gas  plants  in  the  same 
manner  as  is  provided  in  section  11. 

7  G.  L.  c.  65,  infra  page  605. 

8  St.  1916,  c.  269;  see  infra  page  428. 
»  St.  1919,  c.  350,  §  §  52,  53. 


142  Taxation   in    Massachusetts 

[G.L.c.  29-33 

CHAPTER   29 

STATE  FINANCE 

It  is  provided  in  section  50  that  the  amount  necessary  to 
provide  for  serial  payments  on  any  bonds  or  scrip  of  the  com- 
monwealth shall  be  included  in  the  state  tax;  and  in  section 
51  that  the  state  treasurer  shall  assess  upon  the  metropolitan 
districts  amounts  required  to  meet  serial  payments  on  bonds 
issued  for  the  benefit  of  the  district. 

CHAPTER   32 
RETIREMENT   SYSTEMS   AND   PENSIONS 

It  is  provided  in  section  37  that  the  funds  of  state,  county, 
city,  town  or  teachers'  retirement  systems  established  under 
the  preceding  sections  of  the  law,  so  far  as  they  are  invested 
in  personal  property,  and  the  portions  of  members'  wages  de- 
ducted or  to  be  deducted  under  such  sections,  the  rights  of 
members  to  an  annuity  or  pension  and  all  their  rights  in  the 
funds  of  the  retirement  system,  shall  be  exempt  from  taxation. 

In  section  41  a  like  exemption  is  given  to  the  property  of 
associations  of  employees  of  any  employer  formed  for  the  pur- 
pose of  providing  annuities,  pensions  or  endowments,  and  to 
the  wages  deducted  and  to  rights  of  members  in  the  fund. 

CHAPTER   33 

MILITIA 

It  is  provided  in  section  6  that  assessors  shall  annually  file 
with  their  respective  town  clerks  lists  of  persons  liable  to  en- 
rollment in  the  militia  and  in  section  17  that  keepers  of  boarding 
houses  and  masters  of  dwelling  houses  shall  upon  application 
furnish  information  to  the  assessors  regarding  persons  therein 
liable  to  enrollment.  Every  able-bodied  male  citizen  and  every 
able-bodied  male  of  foreign  birth  who  has  declared  his  inten- 
tion to  become  a  citizen,  resident  within  the  commonwealth 
and  between  the  ages  of  18  and  45,  is  required  to  be  enrolled. 


County  Finances  143 


G.L.c.  35,  §§  30,31J 


CHAPTER  35 

COUNTY  FINANCES 
Determination  of  Amount  of  County  Tax 

Section  30.  The  amount  which  the  county  commissioners  shall 
levy  as  the  county  tax  shall  be  as  authorized  annually  by  the  gen- 
eral court,  and  as  computed  by  adding  together  the  amounts  of  the 
annual  appropriation  and  of  any  new  special  appropriation,  so  far 
as  the  money  therefor  is  to  be  raised  by  taxation,  and  deducting 
therefrom  so  much  of  the  probable  receipts  from  all  sources,  except 
loans,  and  of  the  unappropriated  balance  in  the  county  treasury  at 
the  closing  of  the  treasurer's  books  for  the  previous  year  as  the  gen- 
eral court  deems  advisable. 

Section  31.  The  county  commissioners  shall  apportion  and 
assess  all  county  taxes  among  and  upon  the  several  towns  according 
to  the  latest  state  valuation,  and  shall,  by  their  clerk,  certify  the 
assessments  to  the  assessors  thereof,  and  prescribe  the  time  of  pay- 
ment. The  several  amounts  so  apportioned  and  assessed  shall  be 
collected  and  paid  like  the  state  tax  into  the  respective  town  treas- 
uries, and  the  commissioners  in  their  warrants  shall  require  the  select- 
men or  assessors  of  each  town  to  pay,  or  to  issue  their  warrants 
requiring  the  treasurer  thereof  to  pay,  to  the  county  treasurer  the 
amount  so  assessed,  at  such  times  as  shall  be  fixed  in  the  warrant  of 
the  commissioners.  The  selectmen  or  assessors  of  each  town  shall 
return  a  certificate  of  the  name  of  the  treasurer  of  such  town,  with  the 
sum  which  he  may  be  required  to  collect,  to  the  county  treasurer  within 
the  time  fixed  by  the  warrant  of  the  county  commissioners. 

Each  county  is  annually  granted  authority  to  levy  a  tax 
by  a  resolve  of  the  legislature,  the  amount  of  the  tax  and  the 
different  items  of  appropriation  being  fixed  in  the  resolve.  The 
method  of  fixing  the  county  tax  was  provided  for  by  statute 
in  1897;  but  prior  to  that  enactment  it  had  been  the  practice 
since  1781  to  grant  the  county  taxes  by  annual  resolve  based 
on  an  estimate  by  the  county  commissioners  and  their  prede- 
cessors of  the  probable  needs  of  the  county.1 

1  See  St.  1781,  c.  22  §  1.  For  the  procedure  for  collecting  from  a  de- 
linquent town  its  share  of  the  county  tax  see  G.  L.  c.  59,  §  28,  infra  page  254. 


144  Taxation  in   Massachusetts 

[G.L.c.  36  §§22, 31 A 

CHAPTER   36 
REGISTERS   OF  DEEDS 

Noting  Instruments  Affecting  Tax  Deeds 

Section  22.  If  an  assignment,  release,  partial  release,  discharge 
or  disclaimer  affecting  title  to  land  created  by  a  sale  or  taking  for 
payment  of  a  tax  or  assessment  is  recorded,  the  register  shall  make 
a  note  of  reference  thereto  on  the  margin  of  the  record  of  the  deed  or 
instrument  of  sale  or  taking,  if  in  his  registry  and  referred  to  in  such 
conveyance. 

Section  31  A  (St.  1921,  chap.  207).  Within  .sixty  days  after  the 
recording  of  any  deed  in  which  the  grantee  is  described  as  a  trustee, 
or  of  any  declaration  of  trust,  the  register  in  whose  office  such  deed 
or  declaration  is  recorded  shall  send  by  mail  to  the  commissioner  of 
corporations  and  taxation  a  notification  of  the  recording  thereof, 
stating  the  name  of  the  grantor  and  of  the  grantee  or  the  trustee,  and 
the  date  of  recording. 

CHAPTER   40 
POWERS  AND  DUTIES   OF  CITIES  AND  TOWNS 

Street  Sprinkling  Assessments 

Section  16.  A  town  may  sprinkle  or  spread  upon  its  public 
ways,  or  parts  thereof,  any  liquid  or  material  suitable  for  laying  or 
preventing  dust  and  preserving  the  surface  of  such  ways  or  for  san- 
itary purposes,  may  appropriate  money  therefor,  and  determine  that 
with  respect  to  the  whole  or  any  part  of  such  ways  the  whole  or  any 
part  of  such  expense  shall  be  assessed  upon  the  estates  abutting  thereon. 

Section  17.  If  a  city  determines  that  the  public  ways  or  any 
portion  thereof  shall  be  sprinkled  in  whole  or  in  part  at  the  expense 
of  the  abutters,  such  expense  for  a  municipal  year,  and  the  pro- 
portion thereof  to  be  borne  by  abutters,  and  the  rate  to  be  assessed 
upon  each  linear  foot  of  frontage  upon  such  ways,  shall  be  estimated 
and  determined  by  the  board  of  aldermen  and  assessed  upon  the 
estates  abutting  on  such  ways  in  proportion  to  the  number  of  linear 
feet  of  each  estate  upon  such  ways  or  portion  thereof  sprinkled.  The 
amount  of  such  assessments  upon  each  estate  shall  be  determined 
by  said  board,  or,  if  said  board  so  designates,  by  the  board  of  public 
works,  board  of  street  commissioners,  superintendent  of  streets  or 


Powers  and  Duties  of  Cities  and  Towns  145 

G.L.c.  40,  §§16,17,18] 
other  officer;  and  such  board  or  officer  shall,  as  soon  as  may  be  after 

the  first  day  of  April,  cause  a  list  of  such  ways  or  portions  thereof 
to  be  made,  specifying  each  estate  and  the  number  of  linear  feet 
thereof  abutting  thereon,  the  amount  per  linear  foot,  the  amount  on 
each  estate  of  such  assessment,  and  certify  and  commit  said  list  to 
the  assessors  of  taxes.  In  a  town  such  assessment  shall  be  made  by 
the  assessors. 

Section  18.  The  assessors  shall  include  such  assessment  in  the 
tax  list  and  warrant  committed  by  them  to  the  collector  of  taxes  for 
that  municipal  year,  and  it  shall  be  included  in  the  next  annual  tax 
bill,  or  if  the  estate  so  assessed  is  otherwise  exempt  from  taxation, 
it  shall  be  rendered  as  a  tax  bill.  Such  assessment  shall  be  a  lien 
upon  the  estate,  and  shall  be  levied,  collected,  reassessed,  paid,,  appor- 
tioned, .and  bear  interest  and  become  payable,  in  the  same  manner 
as,  and  shall  be  a  part  of,  the  tax  for  that  year  on  such  estate;  but 
in  cities  the  assessors  shall  make  no  abatement  thereof  except  upon 
the  recommendation  of  the  board  or  officer  by  whom  the  list  was 
certified  to  them. 

The  constitutionality  of  imposing  upon  abutting  property 
even  part  of  the  cost  of  sprinkling  streets  was  sustained  with 
some  hesitation  by  the  supreme  judicial  court  when  it  was 
first  questioned,  and  the  court  declared  that  it  was  a  grave 
question  whether  the  benefit  to  be  derived  from  a  regular 
sprinkling  of  the  streets  was  of  such  a  character  that  it  could 
be  the  subject  of  a  betterment  assessment.1  The  assessment 
may  not  in  any  event  exceed  the  benefit  .to  the  property  assessed, 
and  if  land  is  owned  or  used  in  such  a  way  that  the  sprinkling 
of  the  streets  upon  which  it  abuts  is  of  little  or  no  benefit  to  it, 
the  assessment  will  not  be  sustained.2 

The  assessment  of  the  cost  or  a  portion  thereof  in  propor- 
tion to  the  linear  feet  of  frontage  of  abutting  lots  has  been  at- 
tacked as  an  arbitrary  method  of  apportioning  the  cost,  since  it 
is  not  based  on  the  actual  benefit.  It  has  however  been  held 
that  the  statutes  which  authorize  such  a  method  of  assessment 
are  capable  of  a  construction  which  violates  no  constitutional 
principle.3    Assessment  in  proportion  to  frontage  may  be  the 

1  Sears  v.  Aldermen  of  Boston,  173  Mass  71   (1899). 

2  Garden  Cemetery   Corporation  v.  Baker,  218   Mass.  339   (1914). 

3  Statutes  now  included  in  G.  L.  c.  40,  §  17,  were  sustained  in  Sears  v. 
Aldermen  of  Boston,  173  Mass.  71    (1899);  Phillips  Academy  v.  Andover,  175 


146  Taxation   in   Massachusetts 

[G.  L.  c.  40  §§  16, 17, 18 

fairest  method  in  districts  which  are  thickly  settled  and  in 
which  the  lots  are  used  for  similar  purposes  and  are  generally 
similar  in  size  and  depth,  and  a  provision  for  appeal  and  abate- 
ment is  ample  protection  in  the  peculiar  cases  in  which  such 
an  assessment  in  fact  exceeds  the  benefit.  It  has  been  held 
that  the  provisions  in  the  statutes  relating  to  the  abatement 
of  street  watering  assessments  plainly  imply  that  the  owner 
of  land  so  assessed  is  entitled  to  a  hearing  before  the  board  or 
officer  authorized  to  abate  or  to  recommend  the  abatement  of 
such  an  assessment,  and  that  it  is  the  duty  of  such  board  or 
officer  to  abate  or  recommend  the  abatement  of  such  assessment 
if  disproportionate  or  in  excess  of  the  benefit  actually  conferred 
upon  the  land  assessed.  Accordingly,  the  statutes  are  consti- 
tutional and  the  remedy  by  petition  for  abatement  is  exclusive.4 

A  street  watering  assessment  is  not  included  in  the  statutory 
exemption  of  educational  or  charitable  institutions  or  other  like 
organizations  from  general  taxation,  and  if  the  grounds  of  an 
academy  or  a  cemetery  or  other  tract  of  land  devoted  to  a  quasi 
public  use  actually  receive  benefit  from  the  sprinkling  of  the 
streets  upon  which  it  abuts,  it  may  be  assessed  therefor.5 

In  determining  the  cost  of  watering  streets,  the  value  of 
the  water  furnished  by  the  city  from  its  own  water  supply  may 
be  considered.6  If  the  officer  of  the  city  whose  duty  it,  is  to 
determine  the  amount  of  the  assessment  on  each  estate  fails 
to  do  so,  but  the  assessors  have  before  them  the  requisite  data 
and  make  the  assessment  accordingly,  it  is  not  such  an  irregu- 
larity as  to  require  the  assessment  to  be  quashed.7 


Mass.  118  (1900);  Corcoran  v.  Aldermen  of  Cambridge,  199  Mass.  5  (1908), 
and  Garden  Cemetery  Corporation  v.  Baker,  218  Mass.  339  (1914).  A  special 
act  applicable  to  Boston  was  sustained  in  Stark  v.  Boston,  180  Mass.  293  (1902). 

4  Stark  v.  Boston.  180  Mass.  293  (1902);  Corcoran  v.  Aldermen  of  Cam- 
bridge, 199  Mass.  5  (1908).  If  however  property  is  owned  or  held  in  such  a 
way  that  it  can  derive  no  benefit  from  street  watering,  the  validity  of  a  street- 
watering  assessment  can  be  attacked  in  a  bill  in  equity  to  remove  a  cloud 
upon  the  title  consisting  of  a  sale  for  non-payment  of  the  assessment.  Garden 
Cemetery  Corporation  v.  Baker,  218  Mass.  339  (1914). 

5  Phillips  Academy  v.  Andover,  175  Mass.  118  (1900);  Garden  Cemetery 
Corporation  v.  Baker,  218  Mass.  339    (1914). 

6  Corcoran  v.  Aldermen  of  Cambridge,  199  Mass.  5  (1908). 

7  Corcoran  v.  Aldermen  of  Cambridge,  199  Mass.  5  (1908).  For  other  de- 
cisions relative  to  street  watering  assessments  see  Ward  v.  Aldermen  of  Newton, 
181  Mass.  432  (1902);  Hodgdon  v.  Haverhill,  193  Mass.  327  (1907).  For  the 
statute  authorizing  street  watering  assessments  in  Boston  see  St.  1899,  c.  366. 


Powers  and  Duties  of  Cities  and  Towns  147 

G.  L.  c.  40  §  53] 

Restraint  of  Illegal  Appropriations 

Section  53.  If  a  town  or  any  of  its  officers  or  agents  are  about 
to  raise  or  expend  money  or  incur  obligations  purporting  to  bind  said 
town  for  any  purpose  or  object  or  in  any  manner  other  than  that 
for  and  in  which  such  town  has  the  legal  and  constitutional  right 
and  power  to  raise  or  expend  money  or  incur  obligations,  the  supreme 
judicial  or  superior  court  may,  upon  the  petition  of  not  less  than  ten 
taxable  inhabitants  of  the  town,  determine  the  same  in  equity,  and 
may,  before  the  final  determination  of  the  cause,  restrain  the  unlawful 
exercise  or  abuse  of  such  corporate  power. 

In  the  early  history  of  this  commonwealth  the  customary 
method  of  contesting  the  validity  of  appropriations  of  money 
by  a  town  was  to  refuse  to  pay  the  tax  by  which  the  money 
was  to  be  raised  and  thus  oblige  the  collector  to  enforce  pay- 
ment by  distress,  and  then  to  bring  an  action  of  trespass  against 
the  assessors  of  the  town  for  including  the  questioned  amount 
in  the  tax  warrant;  and  if  the  objection  to  the  validity  of  the 
appropriation  was  sustained  the  assessors  were  liable  for  the 
full  value  of  the  property  distrained.1  In  1823  a  statute  was 
enacted  exempting  assessors  from  liability  for  assessing  taxes 
wrongly,  except  for  their  own  want  of  integrity  and  fidelity,2 
and  it  then  became  the  recognized  method  of  contesting  the 
validity  of  an  appropriation  by  a  town  to  pay  the  tax  under 
protest  and  then  to  bring  an  action  against  the  town  itself  for 
money  had  and  received;  and  it  was  held  that  the  inclusion  of 
a  single  improper  item  in  the  annual  tax-warrant  invalidated 
the  whole  assessment  of  that  year.'3  In  1859  a  statute  was  enacted 
limiting  the  recovery  in  such  cases  to  the  illegal  portion  of  the 
tax,4  and  this  statute  for  all  practical  purposes  effectually  put 
an  end  to  the  method  of  contesting  the  validity  of  an  appropriation 
by  action  against  the  town.  In  the  meanwhile,  in  1847  the  legis- 
lature had  provided  a  more  appropriate  means  of  contesting 
the  validity  of  an  expenditure  by  a  city  or  town  by  enacting 

1  Stetson  v.  Kempton,  13  Mass.  272  (1816);  Libby  v.  Burnham,  15  Mass. 
144  (1818);  Inglee  v.  Bosworth,  5  Pick.  498  (1827);  See  also  G.  L.  c.  59  § 
87,  infra  page  314. 

2  St.  1823  c.  138  §  5. 

3  Goodrich  v.  Lunenburg,  9  Gray  38  (1857) ;  Gerry  v.  Stoneham,  1  Allen 
319    (1861). 

*  St.  1859  c.  118  §  §  3,  4. 


148  Taxation   in   Massachusetts 

[G.  L.  c.  40  §  53 
that  "when  a  town  votes  to  raise  by  taxation  or  pledge  of  its 
credit,  or  to  pay  from  its  treasury,  any  money,  for  a  purpose 
other  than  those  for  which  it  has  the  legal  right  and  power, 
the  supreme  judicial  court  may,  upon  the  suit  or  petition 
of  not  less  than  ten  taxable  inhabitants  thereof,  briefly  setting 
forth  the  cause  of  complaint  hear  and  determine  the  same  in 
equity." 

This  statute,  though  of  great  service,  was  limited  in  its 
scope  to  actual  appropriation,  expenditure  or  pledge  of  the 
town's  credit,  and  could  not  be  invoked  to  prevent  the  town 
from  embarking  upon  an  undertaking  which  might  lead  to  tax- 
ation in  the  future  but  for  which  no  immediate  appropriation 
or  pledge  of  credit  had  been  made  5  and  it  had  no  application  to 
action  by  a  town  official  purporting  to  be  taken  in  behalf  of  the 
town  and  of  a  kind  which  the  town  could  have  legally  authorized, 
but  which  was  in  fact  in  excess  of  the  statutory  authority  of 
the  official,  or  in  violation  of  his  instructions  from  the  town.  In 
1898  the  statute  was  altered  to  its  present  form  so  as  to  apply 
to  the  appropriation  or  expenditure  of  money  or  the  incurrence 
of  obligations  purporting  to  bind  the  town,  either  by  the  town 
itself  or  by  any  of  its  officers  or  agents  in  excess  of  its  or  their 
authority.6 

There  are  some  limits  to  the  application  of  the  statute,  even 
in  its  present  form.  It  cannot  be  invoked  against  the  common- 
wealth or  its  officers 7  and  there  is  grave  doubt  if  it  applies 
to  an  independent  board  of  public  officers  appointed  by  the 
governor  but  authorized  to  expend  the  money  of  a  city  or  town.8 
The  ten  taxable  inhabitants  -do  not  represent  the  town  and 
cannot  rescind  or  compel  the  town  to  rescind  a  contract  entered 
into  by  the  town  under  such  circumstances  as  to  render  it 

5  Carlton  v.  Salem,  103  Mass.  141  (1869);  Mead  v.  Acton,  139  Mass.  341 
(1885). 

6  Thus  a  petition  under  the  statute  will  now  lie  to  restrain  the  town 
treasurer  from  paying  town  officers  greater  salaries  than  they  are  entitled 
to  receive,  Faulkner  v.  Sisson,  183  Mass.  524  (1903);  Welch  v.  Emerson,  206 
Mass.  129  (1910);  to  prevent  the  mayor  from  constructing  sidewalks  and  paving 
streets  in  excess  of  his  statutory  authority.  Draper  v.  Mayor  of  Fall  River,  185 
Mass.  142  (1904) ;  to  prohibit  the  board  of  health  from  expending  money 
in  obedience  to  a  vote  of  the  city  council  in  excess  of  its  authority,  Goddard 
v.  Lowell,  179  Mass.  496  (1901);  or  in  disobedience  to  a  vote  within  its 
authority,  Oliver  v.  Gale,  182  Mass.  39  (1902). 

»  Hodgdon  v.  Haverhill,  193  Mass.  406   (1907). 
8  Codman  v.  Crocker,  203  Mass.  146  (1909). 


Powers  and  Duties  of  Cities  and  Towns  149 

G.  L.  c.  40  §  53] 

voidable  at  the  election  of  the  town.9  Petition  under  the  statute 
cannot  be  used  to  collaterally  impeach  an  action  or  adjudication 
of  public  officers  which  stands  until  directly  overthrown;  it  is 
not  the  proper  method  of  trying  title  to  office 10  or  of  question- 
ing the  acts  of  the  proper  authorities  in  laying  out  highways 
when  the  subject-matter  is  within  their  jurisdiction.11  The 
court  on  a  petition  under  the  statute  cannot  consider  the  quali- 
fications of  public  officials  or  the  good  faith  of  their  conduct.12 

The  proceedings  on  a  petition  under  this  statute  are  in 
equity  and  are  governed  by  equitable  doctrines.  An  injunction 
will  not  be  granted  for  technical  error  when  there  is  no  real 
violation  of  law;  13  and  will  be  refused  if  the  petitioners 
have  been  guilty  of  laches.14  Laches  will  be  attributed  to  the 
petitioners  if  they  have  allowed  work  to  be  done  on  the  credit 
of  the  town  and  debts  incurred  without  interfering  until  the 
money  is  about  to  be  paid;15  but  laches  cannot  be  attributed 
to  parties  merely  because  they  knew  of  the  proposed  unlawful 
expenditure  and  did  not  interfere  if  no  such  action  had  been 
taken  by  the  town  as  to  warrant  the  granting  of  an  injunction 
under  the  statute.16  If  without  laches  on  the  petitioners'  part 
the  money  has  been  actually  paid,  the  court  will  order  it  repaid 
to  the  town  by  persons  who  received  it  with  notice  of  the  ille- 
gality 17  or  by  the  official  who  turned  it  over  without  lawful 
authority.18 

When  the  petition  is  granted  petitioners  are  entitled  to 
costs,  to  be  paid  in  some  instances  from  the  fund  in  contro- 
versy,19 and  to  include  counsel  fees  based  not  upon  the  actual 

9  Seward  v.  Revere  Water  Co.  201  Mass.  453  (1909). 

10  Prince  v.  Boston,  148  Mass.  285  (1889). 

11  Fisk  v.  Springfield,  116  Mass.  88  (1874).  A  petition  under  the  statute 
is  not  the  proper  method  of  contesting  the  constitutionality  of  a  statute 
authorizing  the  construction  of  a  public  work  by  a  city  or  town  on  the  ground 
that  proper  provision  had  not  been  made  for  compensation  to  owners  of  land 
injuriously  affected.  Prince  v.  Crocker,  166  Mass.  347  (1896);  Higginson  v. 
Boston,  212  Mass.  583  (1912). 

12  Hodgdon  v.  Haverhill,  193  Mass.  406  (1907). 

13  Freeland  v.  Hastings,  10  Allen  570   (1865). 

14  Tash  v.  Adams,  10  Cush.  252  (1852) ;  Fuller  v.  Melrose,  1  Allen  166  (1861). 

15  Tash  v.  Adams,  10  Cush.  252  (1852);  Fuller  v.  Melrose,  1  Allen  166 
(1861). 

16  Copeland  v.  Huntington,  99  Mass.  425  (1868) ;  Mead  v.  Acton,  139  Mass. 
341   (1885). 

**  Welch  v.  Emerson,  206   Mass.  129   (1910). 
"  Frost  v.  Belmont,  6  Allen   152    (1863). 

19  Pope  v.  Halifax,  12  Cush.  410  (1853) ;  Frost  v.  Belmont,  6  Allen  152 
(1863). 


150  Taxation   in    Massachusetts 

[G.L.c.  41  §§1,  4 
charge  but  of  an  amount  equal  to  the  compensation  paid  to 
public  officers  for  work  of  a  similar  character.20 

It  has  been  held  that  it  does  not  lie  within  the  general  equity 
jurisdiction  of  the  courts  to  restrain  the  illegal  expenditure  of 
public  money  at  the  suit  of  a  taxpayer  and  if  a  case  does  not 
come  within  the  provisions  of  the  statute  a  court  of  equity  will 
grant  no  relief.21  Whether  if  the  statute  had  not  been  enacted 
a  writ  of  mandamus  would  lie  at  the  instance  of  a  private  per- 
son having  no  other  interest  than  as  a  taxpayer  to  prevent  the 
illegal  expenditure  of  public  money  by  a  city  or  town  is  a 
question  open  to  some  doubt;  but  it  has  been  held  that  the 
statute  clearly  shows  the  intent  of  the  legislature  to  cover  the 
whole  subject-matter  and  to  exclude  any  remedy  by  writ  of 
mandamus.22 

CHAPTER  41 

OFFICERS  AND   EMPLOYEES   OF   CITIES, 
TOWNS   AND   DISTRICTS 

Election  of  Assessors  and  Collectors 

Section  1.  Every  town  at  its  annual  meeting  shall  in  every 
year  when  the  term  of  office  of  any  incumbent  expires,  and  except 
when  other  provision  is  made  by  law,  choose  by  ballot  from  its 
inhabitants  the  following  town  officers  for  the  following  terms  of 
office:     .    .    . 

One  or  more  collectors  of  taxes  for  the  term  of  one  year,  unless 
the  town  votes  otherwise  or  votes  to  authorize  its  treasurer  to  act 
as  collector.     ... 

Three  or  five  assessors  for  the  term  of  three  years. 

Three  or  more  assistant  assessors,  if  the  town  so  votes,  for  the 
term  of  three  years.     .     .     . 

In  any  case  where  three  or  more  members  of  a  board  are  to  be 
elected  for  terms  of  more  than  one  year,  as  nearly  one-third  as  may 
be  shall  be  elected  annually. 

Section  4.  A  town  which  does  not  choose  selectmen  or  assessors 
shall  forfeit  such  amount,  not  less  than  one  hundred  nor  more  than  five 

20  Frost  v.  Belmont,  6  Allen  152   (1863). 

21  Carlton  v.  Salem,  103  Mass.  141  (1869);  Baldwin  v.  Wilbraham.  140 
Mass.  459  (1886);  Steele  v.  Municipal  Signal  Co.,  160  Mass.  36  (1894); 
Prince  v.  Crocker,  166  Mass.  347,  358  (1896);  Sylvester  v.  Webb,  179  Mass, 
236  (1901). 

22  Findlay  v.  Boston,  196  Mass.  267  (1907). 


Officers  and  Employees  of  Cities  and  Towns  151 

G.L.c.  41  §20] 
hundred  dollars,  as  the  county  commissioners  of  the  county  where  the 

town  is  situated  may  order. 

It  is  not  permissible  for  a  town  to  bid  off  the  office  of  collector 
to  the  person  who  offers  the  most  favorable  terms,  but  it  may 
give  the  office  to  the  lowest  bidder  whom  the  town  will  accept; 
in  other  words  the  town  may  in  selecting  a  collector  consider 
the  terms  upon  which  it  can  have  the  duties  of  the  office  per- 
formed provided  it  does  not  wholly  throw  off  its  obligation  of 
selecting  a  proper  officer  and  depend  entirely  upon  the  bids.1 

Towns  may  elect  more  than  one  collector  and  divide  the 
taxes  among  the  collectors  so  chosen.2  A  person  who  has  been 
previously  elected  selectman  and  assessor  may  be  chosen  col- 
lector; there  is  nothing  inherently  incompatible  in  the  offices.3 
The  swearing  of  the  collector  and  his  mode  of  election  may  be 
proved  by  parol.4 

In  cities  which  have  adopted  the  commission  form  of  gov- 
ernment, both  the  assessment  and  the  collection  of  taxes  are 
under  the  control  of  a  commissioner  of  finance,  elected  directly 
by  the  people  of  the  city.5 

Duties  of  Selectmen  in  Regard  to  Assessors 

Section  20.  Selectmen  shall,  upon  the  receipt  and  approval 
of  the  bond  of  a  collector  of  taxes  or  treasurer,  give  written  notice 
thereof  to  the  assessors.  The  selectmen  shall  be  assessors  of  taxes 
and  overseers  of  the  poor  in  towns  which  have  not  authorized  the 
election  of  such  officers;  and  before  acting  as  assessors  they  shall 
take  the  oath  required  of  assessors.   ' .     .     . 

It  was  provided  by  the  colony  law  of  1651  "for  preventing 
such  inconveniences  as  have  fallen  out  upon  former  assessments" 
that  a  meeting  should  be  called  in  each  town  in  the  fifth  month 
of  every  year,  and  that  the  inhabitants  so  assembled  should 
choose  one  of  the  freemen  of  the  town  to  be  a  commissioner 
for  the  town,  who,  together  with  the  selectmen,  should  in  the 
following  month  make  a  true  estimation  of  all  the  real  and  per- 

1  Alvord  v.  Collin.  20  Pick.  418  (1838);  Spencer  v.  Jones,  6  Gray  502 
(1856):  Howard  v.  Proctor,  7  Gray  128  (1856). 

2  Belgrade  v.  Sidney,  15  Mass.  523  (1819). 

3  Howard  v.  Proctor,  7  Gray  128  (1856). 

4  Howard  v.  Proctor,  7  Gray  128  (1856). 
6  G.   L.   c.  43,   §  67. 


152  Taxation   in   Massachusetts 

[G.L.c.  41  §20 

sonal  estate  of  the  persons  in  the  town.  The  commissioners 
for  the  several  towns  in  each  county  were  required  to  meet  at 
the  shire  town  on  the  first  Wednesday  of  the  seventh  month 
to  correct  and  perfect  the  assessment  lists  and  then  speedily 
commit  them  for  collection  to  the  proper  officers.1 

Under  the  provincial  government,  which  began  in  1691,  it 
was  the  practice  to  enact  laws  of  limited  duration,  and  most  of 
the  statutes  providing  for  the  election  of  officers  charged  with 
the  duty  of  assessing  taxes  provided  in  terms  that  they  should 
be  in  force  for  a  short  period  of  years.  These  statutes  were 
sometimes  continued  for  an  additional  period  as  they  were 
about  to  expire  and  sometimes  re-enacted  in  the  same  or  in  a 
modified  form.  By  the  first  provincial  statute  on  the  subject, 
enacted  in  1692,  the  selectmen  of  each  town  were  empowered 
to  assess  the  inhabitants  and  others  resident  within  such  town 
and  the  lands  and  estates  lying  within  the  bounds  of  such  town 
for  both  county  and  town  charges,2  but  by  the  end  of  the  century 
it  became  the  practice  to  authorize  the  election  of  assessors  dis- 
tinct from  the  selectmen,  if  the  town  so  desired.3  In  1730  more 
elaborate  provision  was  made  for  defining  the  duties  of  assess- 
ors and  securing  the  performance  of  such  duties.  Assessors  were 
to  be  elected  in  each  town  to  assess  the  province,  county  and 
town  taxes.  If  no  assessors  were  elected  the  selectmen  were 
to  act  as  assessors;  and  if  neither  assessors  nor  selectmen  were 
chosen  by  the  town  the  justices  of  the  court  of  general  sessions 
of  the  county  were  empowered  to  choose  three  freeholders  within 
the  county  to  act  as  assessors  for  the  delinquent  town.4  These 
provisions  were  retained  in  substance  in  the  permanent  statute 
relating  to  assessors  and  their  duties  enacted  soon  after  inde- 
pendence was  established,5  and  have  remained  in  force  ever 
since,  the  county  commissioners  taking  the  place  in  this  as  in 
other  matters  of  the  court  of  sessions.6 

A  town  may  manifest  its  intention  that  the  selectmen  shall 
act  as  assessors  either  by  failing  to  elect  assessors  or  by  voting 

1  Anc.  Chart.  69.  From  the  earliest  period  the  office  of  assessor  has  been 
elective.     11  Plym.  Col.  Rec.  42,  2  Mass.  Col.  Rec.  152. 

2  St.  1692-3,  c.  28 

3  St.  1699-1700,  c.  26;  St.  1706-7,  c.  3. 

4  St.  1730,  c.  1. 

5  St.  1785,  c.  50  §  §  1,  2. 

6  See  G.  L.  c.  41,  §  27,  providing  for  the  appointment  by  county  com- 
missioners of  persons  to  act  as  assessors  if  assessors  or  selectmen  acting  as  such 
should  fail  to  perform  their  duties. 


Officers  and  Employees  of  Cities  and  Towns         153 
G.  L.  c.  41  §  20] 

expressly  that  the  selectmen  shall  act  as  assessors.7  The  stat- 
utes authorizing  this  procedure  have  continued  in  force;8  but 
in  1920  additional  alternative  methods  of  dispensing  with  the 
election  of  assessors  at  town  meeting  were  introduced.  One 
section  of  the  statute  provided  that  in  towns  which  accepted 
the  section  the  selectmen  should  appoint  assessors  for  a  term 
of  not  more  than  three  years.9  This  section  applied  only  to 
assessors,  was  subject  to  acceptance  in  the  ordinary  way,  and 
no  provision  was  made  for  rescinding  the  acceptance.  Assessors 
appointed  under  this  section  are  independent  of  the  direction 
and  control  of  the  selectmen,  but  may  be  removed  by  the  select- 
men for  cause.  At  the  same  time,  by  another  section  of  the 
statute,  which  was  applicable  to  other  town  officers  besides 
selectmen  and  could  be  acted  upon  only  by  referendum  vote  on 
the  official  ballot  and  affirmative  action  upon  which  might  be 
rescinded  after  three  years'  trial,  provision  was  made  for  sub- 
mitting to  the  voters  of  a  town  two  questions:  —  (1)  whether 
the  selectmen  should  act  as  assessors,  and  (2)  whether  the 
selectmen  should  appoint  assessors.10  If  a  town  votes  under 
this  section  to  authorize  the  appointment  of  assessors,  the  select- 
men are  directed  to  appoint  three  or  five  assessors,  who  are 
to  act  as  such,  subject  however  to  the  supervision  of  the  select- 
men,11 and  are  to  hold  office  until  removed  by  the  selectmen.12 

It  will  thus  be  seen  that  a  town  may  cause  its  selectmen 
to  act  as  assessors  either  by  failing  or  refusing  to  elect  assessors 
or  by  voting  by  referendum  under  the  special  provisions  of  the 
1920  act  that  the  selectmen  shall  act  as  assessors;  and  it  may 
cause  its  selectmen  to  appoint  the  assessors  either  by  accepting 
the  section  of  the  statute  which  authorizes  such  procedure  or 
by  voting  by  referendum  under  the  special  provisions  of  the  1920 
act  that  the  selectmen  shall  act  as  assessors. 

In  cities,  under  modern  conceptions  of  the  centralization  of 
executive  authority,  assessors  are  usually  appointed  by  the 
mayor,  subject  to  confirmation  by  the  board  of  aldermen  or 
body  having  equivalent  powers,  and  are  ordinarily  subject  to 

7  Commonwealth  v.  Wentworth,   145  Mass.  50   (1887). 

8  G.   L.    c.   41,    §  20. 

9  St.  1920,  c.  591,  §  §  31,  32,  now  G.  L.  c.  41,  §  25. 

10  St.  1920,  c.  591,  §  §  36-47  inc.,  now  G.  L.  c.  41,  §  21. 

11  G.   L.   c.  41,   §  26. 

12  G.  L.  c.  41,   §  22. 


154  Taxation   in    Massachusetts 

[G.L.c.  41  §24 

removal  by  the  mayor  for  cause.13  The  appointment  and  re- 
moval of  assessors  is  not  subject  to  the  provisions  of  law  relating 
to  the  civil  service.14 

Term  of  Assessors  and  Number  to  be  Chosen 

Section  24.  Each  assessor  in  every  city  or  town  except  Boston 
shall  be  elected  or  appointed  to  hold  office  for  three  years,  or  until 
his  successor  is  duly  elected  or  appointed.  There  shall  be  three,  five, 
seven  or  nine  assessors  in  each  city,  and  as  nearly  one  third  of  the 
number  as  may  be  shall  be  elected  or  appointed  annually. 

Originally,  assessors,  like  other  town  officers,  were  elected 
for  the  term  of  one  year,  but  in  the  larger  towns  it  began  ta 
be  realized  that  the  office  of  assessor  required  more  technical 
skill  and  experience  than  could  be  acquired  in  a  single  year.  In 
1878  provisions  first  appeared  to  secure  greater  permanency  in 
boards  of  assessors,  which  now  apply  in  every  case  in  which 
assessors  are  chosen  at  all,1  -but  there  is  nothing  to  prevent 
towns  from  still  providing  by  vote  that  the  selectmen  shall 
act  as  assessors  and  electing  the  selectmen  for  terms  of  a  single 
year.  Whether  the  term  of  assessors  is  limited  to  one  year  or 
more  for  the  entire  membership,  or  only  one  member  is  elected 
or  appointed  annually,  each  board  of  assessors  is  charged  with 
the  duties  prescribed  by  law,  which  cannot  be  performed  by 
their  predecessors  and  cannot  arise  until  the  date  named  for 
performance,  and  when  their  power  is  once  properly  exercised 
it  is  exhausted.2 

It  is  not  requisite  to  the  validity  of  the  acts  of  a  board  of 
assessors  that  all  the  assessors  elected  concur  therein;  the  act 
of  the  majority  is  the  act  of  the  board.3  If  after  the  designated 
number  of  assessors  has  been  elected,  one  dies  or  refuses  to 
qualify  and  the  vacancy  is  not  filled  by  the  town,  the  remaining 
members  may  exercise  the  full  powers  of  the  board.4 

In  proceedings  to  enforce  the  payment  of  a  tax,  assessed  by 
persons  who  acted  under  color  of  an  election  by  the  town  as 
evidenced  by  its  records  and  who  took  the  official  oath  as  assess- 
ors, it  is  not  open  to  the  person  assessed  to  offer  evidence  that 

13  Ayers  v.  Hatch,  175  Mass.  489   (1900) ;   Johnson  v.  Mayor  of  Quincy, 
198  Mass.  411   (1908). 

14  Ayers  v.  Hatch.  175  Mass.  489  (1900). 

1  St.    1878,    c.    255. 

2  J.  L.  Hammett  Co.  v.  Alfred  Peats  Co.,  217  Mass.  520  (1914). 

3  Sprague  v.  Bailey.  19  Pick.  436   (1837).    See   also,  G.  L.  c.  4   §6,  cl.  5. 
*  George  v.  School  District  in  Mendon,  6  Met.  497   (1843). 


Officers  and  Employees  of  Cities  and  Towns  155 

G.  L.  c.  41  §§  24A,  25A,  28] 

in  the  election  of  assessors  there  was  a  failure  to  comply  with 
the  election  laws;  for  the  persons  who  appeared  of  record  as 
assessors  were  at  least  assessors  de  facto  and  it  is  well  settled 
that  the  validity  of  acts  of  de  jacto  officials  cannot  be 
called  in  question  in  suits  or  proceedings  to  which  they  are 
not  parties.5 

Assistant  Assessors 

Section  24  A  (St.  1921,  chap.  208).  If  in  the  case  of  any  city 
there  is  no  provision  of  law  for  the  election  or  appointment  of  assist- 
ant assessors  and,  in  the  judgment  of  the  assessors,  assistant  assess- 
ors are  necessary,  or  if,  in  the  judgment  of  the  assessors,  the  pro- 
visions of  law  with  regard  to  the  election  or  appointment  of  assistant 
assessors  in  any  city,  or  action  taken  thereunder,  have  not  provided 
in  any  year  for  a  sufficient  number*  of  assistant  assessors,  the  mayor 
subject  to  confirmation  by  the  city  council,  or  the  assessors,  as  the 
city  council  may  determine,  may  appoint  as  assistant  assessors  such 
number  of  registered  voters  of  the  city  as  the  appointing  authority 
may  deem  necessary.  Such  appointments  shall  expire  at  the  end  of 
the  calendar  year  in  which  they  are  made. 

Section  25  A  (St.  1921,  chap.  14).  In  towns  which  accept  this 
section  the  assessors  may  appoint  and  remove  citizens  of  the  town 
as  assistant  assessors,  who  shall,  subject  to  the  supervision  of  the 
assessors,  act  as  assistant  assessors  of  the  town  and  shall  have  all 
necessary  powers  therefor.  In  this  section,  the  word  towns  shall  not 
include  cities. 

Section  28.  Assistant  assessors  shall,  in  their  respective  dis- 
tricts, assist  the  assessors  in  making  lists  of  persons  liable  to  be 
assessed  for  poll  taxes  in  such  districts,  in  publishing  and  transmit- 
ting lists  of  persons  so  assessed,  in  estimating  the  value  of  the  real  and 
personal  estate  in  such  districts,  and  in  the  performance  of  such 
other  duties  as  the  assessors  require. 

Provision  was  first  made  for  the  appointment  of  assistant 
assessors  in  1809  and  there  has  been  no  substantial  change  in 
the  statutes  relating  to  their  duties  since  that  date.1  The  recent 
statutes  which  provide  under  some  circumstances  for  the  appoint- 
ment of  assessors  by  the  selectmen  make  like  provisions  for 
assistant  assessors;2  and  in  1921,  as  appears  above,  provision 

5  Sudbury  v.  Heard,  103  Mass.  543  (1870). 

1  St.  1809,  c.   127. 

2  G.  L.  c.  41,  §§25,  26. 


156  Taxation   in   Massachusetts 

[G.L.c.  41,  §§29,30 

was  made  for  the  appointment  of  assistant  assessors  by  the 
assessors  under  some  circumstances. 

Oath  of  Assessors 

Section  29.  Any  person  chosen  to  assess  taxes  or  to  determine 
or  to  assist  in  determining  the  value  of  property  for  the  purpose  of 
taxation  shall,  before  entering  upon  the  performance  of  his  duties, 
take  the  following  oath: 

I,  having  been  chosen  to  assess  taxes  and  estimate  the  value  of 
property  for  the  purpose  of  taxation  for  the  town  (or  city)  of 
for  the  year  (or  years)  ensuing,  do  swear  that  I  will  truly  and  im- 
partially, according  to  my  best  skill  and  judgment,  assess  and  appor- 
tion all  such  taxes  as  I  may  during  that  time  assess;  that  I  will 
neither  overvalue  nor  undervalue  any  property  subject  to  taxation, 
and  that  I  will  faithfully  perform  all  the  duties  of  said  office. 

If  he  neglects  to  take  such  oath  before  entering  upon  the  perform- 
ance of  his  duties,  he  shall  forfeit  not  more  than  fifty  dollars. 

The  oath  of  the  assessors  is  to  be  construed  in  the  light  of 
all  the  other  provisions  of  law  for  the  assessment  of  taxes ;  and  when 
a  statute  requires  property  to  be  valued  in  a  certain  way,  the 
assessors  are  bound  to  follow  the  statute,  even  if  they  know 
that  in  fact  an  overvaluation  will  result.1 

Penalty  for  False  Valuation 

Section  30.  Any  person  chosen  to  determine  the  valuation  of 
property  for  the  purpose  of  taxation  who,  in  order  that  the  tax  payers 
may  escape  payment  of  their  just  proportion  of  any  state  or  county 
tax  or  in  order  to  evade  any  law  limiting  municipal  indebtedness 
or  the  rate  of  taxation  to  a  percentage  of  valuation  or  for  any  other 
fraudulent  or  corrupt  purpose,  knowingly  fixes  the  valuation  of  any 
property  at  a  smaller  or  greater  amount  than  its  full  and  fair  cash 
value,  or  who  causes  an  abatement  to  be  made  otherwise  than  is 
provided  by  law,  shall  be  punished  by  a  fine  of  not  more  than  one 
thousand  dollars,  or  by  imprisonment  for  not  more  than  six  months, 
or  both. 

The  "  full  and  fair  cash  value"  at  which  assessors  are  required 
to  fix  the  valuation  of  property  is  a  phrase  difficult  to  define, 

1  Sears  v.  Nahant,  215  Mass.  329  (1913). 


Officers  and  Employees  of  Cities  and  Towns  157 

G.L.c.  41  §37] 

and  its  application  is  somewhat  dependent  upon  the  class  of 
property  to  be  valued.1  The  phrase  is  used  in  other  portions 
of  the  tax  statutes  with  the  same  significance  as  here  and  its 
meaning  is  discussed  elsewhere  in  this  work.2 

The  liability  of  an  assessor  in  a  civil  action  brought  by  a 
person  claiming  to  be  wrongfully  assessed  is  also  discussed  in 
another  chapter.3  It  has  been  held  that  an  assessor  is  not  liable 
in  an  action  brought  against  him  by  the  town  for  assessing 
taxes  in  such  a  way  that  the  town  suffers  financial  loss,  at 
least  when  there  has  been  no  want  of  integrity  and  fidelity  on 
his  part,  but  only  ordinary  negligence.4  A  civil  action  by  a 
town  against  a  person  chosen  as  assessor  does  not  lie  on  account 
of  his  failure  to  take  the  oath  of  office.5 

Collection  of  Taxes  by  Treasurer 

Section  37.  A  town  treasurer  acting  as  collector  of  taxes  may 
appoint  deputies,  who  shall  give  bond  to  the  satisfaction  of  the  select- 
men for  the  faithful  performance  of  their  duties;  and  such  collector 
and  deputies  shall  have  the  powers  of  collectors  of  taxes.  A  treas- 
urer acting  as  collector  may  issue  his  warrant  to  the  sheriff  of  the 
county  or  his  deputy,  or  to  any  constable  of  the  town,  directing 
them  to  distrain  the  property  or  take  the  body  of  any  person  de- 
linquent in  the  payment  of  taxes,  and  may  proceed  in  the  same  man- 
ner as  collectors. 

The  statutes  do  not  require  a  collector  to  perform  all  his 
duties  in  person,  and  he  may,  under  certain  conditions,  appoint 
deputies.1  A  treasurer  who  acts  as  collector  is  given  like  powers 
by  the  above  statute.  A  treasurer  who  acts  as  collector  may 
issue  his  warrants  to  the  sheriff  of  the  county  or  his  deputy  or 
to  any  constable  of  the  city  or  town  requiring  them  to  collect 
any  or  all  taxes  due;2  and  a  collector  may  issue  his  warrant 
to  like  officers  requiring  them  to  collect  a  particular  tax  by  dis- 
tress or  arrest;3  and  a  town  may  vote  to  give  its  collector  the 

1  Massachusetts  General  Hospital  v.  Belmont,  233  Mass.  190,  205   (1919). 

2  G.  L.  c.  59  §  38,  infra  page  267. 

3  G.  L.  c.  59  §  87,  infra  page  314. 

4  First  Parish  in  Sherburne  v.  Fiske,  8  Cush.  264  (1851) ;  Lincoln  v.  Chapin, 
132  Mass.  470  (1882). 

5  First  Parish  in  Sherburne  v.  Fiske,  8  Cush.  264  (1851). 

1  G.  L.  c.  60  §  92,  infra  page  395. 

2  G.  L.  c.  60  §  90,  infra  page  393. 

3  G.  L.  c.  60  §  34,  infra  page  340. 


158  Taxation   in    Massachusetts 

[G.L.c.  41  §§38,39 
power  of  a  treasurer  in  this  regard.4  A  constable  so  employed 
must  look  to  the  collector  and  not  to  the  town  for  his  compen- 
sation.5 

Authorization  to  use  Powers  of  Treasurer 

Section  38.  A  town  may  authorize  its  collector  of  taxes  to 
use  all  means  of  collecting  taxes  which  a  town  treasurer  may  use 
when  appointed  a  collector  of  taxes. 

It  has  been  held  that  the  vote  authorized  in  the  statute  is 
justified  by  an  article  in  the  warrant  "to  elect  all  necessary 
town  officers  for  the  ensuing  year."  x  The  means  referred  to 
in  the  statute  is  doubtless  the  issuance  of  warrants  to  the  sher- 
iff of  the  county  or  his  deputy  or  any  constable  of  the  town 
requiring  them  to  collect  any  or  all  taxes  due.2  In  the  absence 
of  such  a  vote  the  collector  has  the  power  of  delegating  to  a 
sheriff  or  constable  only  the  duty  of  collecting  taxes  assessed 
upon  designated  persons.3 

Constable  as  Collector  of  Taxes 

Section  39.  If  a  person  appointed  to  collect  taxes  in  a  town 
refuses  to  serve,  or  if  no  person  is  elected  or  appointed  a  collector 
of  taxes,  the  constables  of  the  town  shall  be  the  collectors  of  taxes. 

It  was  provided  by  the  colonial  statutes 1  that  taxes  should 
be  collected  by  the  constable  of  the  town  in  which  they  were 
assessed  and  the  same  provision  was  made  in  the  earlier  stat- 
utes of  the  provincial  period;2  but  before  many  years  the  election 
of  a  collector  distinct  from  the  constable  was  authorized  and 
the  constable  continued  to  collect  taxes  only  when  no  collector 
was  chosen.3  In  1745  it  was  provided  that  if  no  constable  or 
collector  was  elected  by  a  town  the  sheriff  of  the  county  might 
collect  the  taxes.4    These  provisions  have  remained  substantially 

4  G.  L.  c.  §  38  infra  page  158. 

5  Murphy  v.  Clinton,  182  Mass.  198   (1902). 

1  Sherman  v.  Torrey,  99  Mass.  472   (1868). 

2  G.  L.  c.  60  §  90,  infra  page  393. 

3  Smith  v.  Keniston,  100  Mass.  172  (1868). 

1  Anc.  Chart.  69.  82. 

2  St.  1692-3.  c.  28. 

3  St.  1699-1700,  c.  26;  St.  1710-11,  c.  5;  St.  1730,  c.  1. 
*  St.  1745-46,  c.  19. 


Municipal  Finance  159 

G.L.c.  41  §40] 

unchanged  to  the  present  time.5  In  1815  it  was  first  enacted 
that  a  town  might  appoint  its  town  treasurer  collector  of  taxes.6 
When  no  person  is  chosen  collector  and  the  town  has  not 
voted  that  the  treasurer  act  as  collector,  or  a  person  chosen  as 
collector  declines  to  serve,  the  constables  of  the  town  become 
collectors  ex  officio  without  further  formality  and  without  taking 
any  additional  oath,7  even  although  the  person  chosen  collector 
is  not  summoned  in  writing  to  accept  the  office  and  his  refusal 
to  accept  does  not  appear  of  record.8 

Temporary  Collector 

Section  40.  If  the  office  of  treasurer  or  collector  of  taxes  is 
vacant,  or  if  the  treasurer  or  collector  is  unable  to  perform  his  duties, 
the  selectmen  may  in  writing  appoint  a  temporary  treasurer  or 
collector,  who  shall  be  sworn,  give  bond  in  like  manner  as  the  treas- 
urer or  collector  chosen  by  the  town,  and  hold  such  office  until  another 
is  qualified  or  the  disability  is  removed.  If  a  treasurer  or  collector 
does  not,  within  ten  days  after  his  election  or  appointment,  give  bond, 
the  selectmen  may  declare  the  office  vacant  and  appoint  another. 

The  appointment  of  a  collector  pro  tempore  must  be  made 
by  at  least  a  majority  of  the  selectmen  and  if  it  is  not  so  made 
a  subsequent  ratification  by  the  whole  board  is  ineffectual.1 
When  a  collector  has  died  and  the  selectmen  appoint  a  successor 
without  designating  him  as  a  collector  pro  tempore,  the  ap- 
pointment is  merely  inoperative  so  far  as  it  exceeds  the  select- 
men's authority,  but  it  is  valid  as  a  temporary  appointment 
until  another  election  is  had  by  the  town.2 

CHAPTER   44 
MUNICIPAL  FINANCE 

Establishment  of  Tax  Limit 

Section  29.  The  tax  limit  heretofore  established  by  ordinance 
under  section  nineteen  of  chapter  seven  hundred  and  nineteen  of  the 
acts  of  nineteen  hundred  and  thirteen,  in  cities  other  than  Boston, 

5  See  G.  L.  c.  59  §  53,  infra  page  280. 

6  St.   1815,  c.  130,  §  1. 

7  Colman  v.  Anderson,  10  Mass.  105  (1813) ;  Hays  v.  Drake,  6  Gray  387 
(1856). 

•    8  Hays  v.  Drake,  6  Gray  387  (1856). 

1  Phelon  v.  Granville,  140  Mass.  386  (1886). 

2  Blackstone  v.  Taft,  4  Gray  250  (1855). 


160  Taxation   in    Massachusetts 

[G.  L.  c.  44  §  29 
shall  have  the  force  of  law  until  it  is  annulled  or  modified  by  the 
action  of  the  city  council  or  other  governing  body.  The  mayor,  or 
in  cities  having  a  commission  form  of  government  the  commissioner 
or  director  of  finance,  may  request  a  change  in  the  tax  limit  as  then 
existing  or  the  fixing  of  a  limit;  and  when  such  request  is  submitted 
in  writing  to  the  city  council,  it  shall  immediately  order  a  public 
hearing  to  be  held  not  less  than  seven  days  thereafter  relative  to  the 
fixing  of  a  tax  limit,  and  after  such  hearing  the  council  may,  be- 
tween January  first  and  May  first  only,  by  ordinance  passed  by  a 
two  thirds  vote,  fix  a  limit  or  abolish  a  limit  previously  established, 
and  such  ordinance  shall  remain  in  force  until  further  modified, 
as  above  provided. 

In  1885  it  was  provided  by  statute  that  in  any  city,  except 
Boston,  the  rate  of  taxation  for  municipal  purposes,  exclusive 
of  the  requirements  of  the  city  debt,  should  not  exceed  twelve 
dollars  on  each  thousand  dollars  of  the  average  assessed  valu- 
ation of  the  taxable  property  in  such  city  for  the  preceding  three 
years.1  In  Boston  the  tax  limit  was  placed  at  ten  and  one-half 
dollars  per  thousand.2 

The  statute  of  1913  referred  to  in  the  present  statute  pro- 
vided that  within  ninety  days  after  the  passage  of  the  act  the 
city  council  of  every  city,  except  Boston,  should  hold  a  public 
hearing  in  regard  to  establishing  a  tax  limit  for  the  city,  and 
that  every  city  might  provide  by  ordinance  that  the  taxes 
assessed  on  property  therein,  exclusive  of  the  state  tax  and 
other  amounts  assessed  upon  the  city  by  the  commonwealth, 
the  county  tax  and  sums  required  by  law  to  be  raised  on  account 
of  the  city  debt,  should  not  in  any  year  thereafter  exceed  a 
number  of  dollars  specified  in  the  ordinance  on  every  thou- 
sand dollars  of  the  average  of  the  assessors'  valuation  of  the 
taxable  property  therein  for  the  preceding  three  years,  such 
valuation  being  first  reduced  by  the  amount  of  all  abatements 
allowed  therein  previous  to  the  thirty-first  day  of  December 
in  the  year  preceding  such  assessment,  and  that  the  tax  limit 
so  established  should  have  the  force  of  law  until  modified 
by  the  city  council.  A  method  of  modification  was  provided, 
which  was  superseded  by  the  present  method,  adopted  in  1915.3 

1  St.  1885,  c.  312,  §  l. 

2  St.    1885,    c.    178,    §  1. 

3  St.  1915,  c.  18. 


Municipal  Finance  161 

G.L.c.  44  §29] 

In  Boston  the  tax  limit  is  still  fixed  by  statute4  and  can  be 
modified  only  by  the  legislature  itself. 

The  distinction  between  the  tax  limit  and  the  tax  rate  is 
to  be  carefully  kept  in  mind.  The  tax  limit  does  not  concern 
itself  with  state  and  county  expenditures,  or  with  the  require- 
ments of  the  city  debt,  all  of  which  affect  the  tax  rate.  On  the 
other  hand,  the  tax  rate  is  based  on  the  valuation  of  the  current 
year  and  the  tax  limit  on  the  average  valuation  of  the  three 
preceding  years.  The  object  of  the  statute  authorizing  cities 
to  establish  a  tax  limit  is  to  protect  the  taxpayers  from  a  sudden 
increase  in  current  municipal  expenditures  through  the  acts  of  a 
bare  majority  in  the  city  council,  whether  intended  to  be  met 
by  an  increase  in  the  tax  rate  or  by  an  increase  in  valuations. 

The  following  illustrative  example  will  show  how  the  proper 
tax  limit  of  a  city  would  be  determined  if  it  was  desired  that 
there  should  be  no  increase  in  the  burden  on  real  estate  by 
reason  of  an  increase  in  current  municipal  expenditures  dis- 
proportionate to  the  growth  of  the  city  as  evidenced  by  the 
increase  in  valuation  of  real  estate  and  tangible  personal  prop- 
erty. 

Reasonable   limit   of   total  Annual   Municipal   Expenditures $  2,500,000 

Deduct : 
Debt    Requirements     (Interest,     Serial     Bonds     and 

Sinking  Fund)    $250,000 

Corporation   taxes   and    other   estimated   receipts 350000 

Income   Tax    250,000 

Polls 25,000 

From  Reserve  Fund  25,000 

Total   Deductions    $    900,000 

To  be  raised  by  direct  tax  for  purposes  other  than  debt $  1,600,000 

Total  average   valuation   for  preceding   three  years $80,000,000 

Tax    Limit    $20.00    per    thousand. 

On  these  figures,  assuming  a  normal  increase  in  real  estate 
valuations,  the  tax  rate  would  be  determined  as  follows: 

Total  Municipal  Expenditures $2,500,000 

State,  county  and   (if  in  metropolitan  district)   metropolitan 
taxes    . : : 450,000 

Total  requirements    $  2,950,000 

Estimated  receipts   (as  in  previous  table) $     650,000 

To  be  raised  by  direct  tax $  2,300,000 

Total  valuation   $85,000,000 

Tax  rate  (with  allowance  for  overlay) $27.10  per  thousand. 

4  See  Sp.  Acts  1919,  cc.  173,  206,  249,  252. 


162  Taxation   in    Massachusetts 

[G.L.c.  48  §69 

Expenses  of  Auditing  Municipal  Accounts 

Section  41.  The  expenses  incurred  under  sections  thirty-five 
to  forty,  inclusive,  shall  be  paid  primarily  by  the  commonwealth; 
and  the  state  treasurer  shall  issue  his  warrant  requiring  the  assessors 
of  the  cities  and  towns  concerned  and  of  the  towns  in  which  such 
district  is  located  to  assess  a  tax  to  the  amount  of  said  expense,  and 
such  amount  shall  be  collected  and  paid  to  the  state  treasurer  in 
the  same  manner  and  subject  to  the  same  penalties  as  state  taxes. 
Any  balance  due  shall  be  assessed  in  the  succeeding  years  in  the  same 
manner  as  other  state  taxes. 

Sections  thirty-five  to  forty,  referred  to  in  the  foregoing 
statute,  provide  for  the  auditing  of  municipal  accounts  or  the 
installation  of  an  accounting  system  by  the  state  director  of 
accounts. 

Interest  on  Debts  Incurred  by  a  City  or  Town  in  Aid 

of  a  Railroad 

Section  57.  A  city  or  town  owing  debts  incurred  in  aid  of  a 
railroad  corporation  shall  annually  raise  by  taxation  an  amount 
sufficient,  with  the  income,  if  any,  derived  from  its  stock  or  securi- 
ties, to  pay  the  interest  on  such  debts. 

CHAPTER   48 

FIRES,   FIRE  DEPARTMENTS   AND   FIRE 

DISTRICTS 

Taxation  by  Fire  Districts 

Section  69.  Such  districts  may,  at  meetings  called  therefor, 
raise  money  by  taxation  for  the  purchase  of  engines  and  other  articles 
necessary  for  the  extinguishment  of  fires,  for  hydrant  and  water 
service,  for  the  purchase  of  land,  for  the  erection  and  repairs  of 
necessary  buildings,  for  the  erection  and  maintenance  of  street  lamps 
within  their  limits,  for  the  payment  of  a  proper  charge  of  an  insur- 
ance company  for  acting  as  surety  on  an  official  bond  which  may 
be  given  to  such  district  by  any  of  its  officers,  and  for  other  incidental 
expenses  of  the  fire  department.  The  prudential  committee  of  such 
district  may  accept  an  insurance  company  as  sufficient  surety  upon 
such  bond. 


Fire  Departments  and  Fire  Districts  163 

G.  L.  c.  48  §  73] 

Section  73.      The  clerk  shall  certify  to  the  assessors  of  the  town 

all  votes  of  the  district  authorizing  interest  to  be  added  to  taxes 
and  all  sums  of  money  voted  to  be  raised,  which  shall  be  assessed 
and  collected  in  the  same  manner  as  town  taxes,  and  shall  be 
paid  over  to  the  district  treasurer.  The  assessors,  treasurer  and 
collector  of  a  town  in  which  such  district  is  organized  shall  have 
the  same  powers  and  perform  the  same  duties  relative  to  the  assess- 
ment and  collection  of  the  money  voted  by  the  fire  district  as  they 
have  and  exercise  relative  to  the  assessment,  collection  and  abatement 
of  town  taxes,  and  the  sums  so  voted  shall  be  assessed  upon  the 
property,  real  and  personal,  within  the  district. 

A  fire  district  is  a  territorial  subdivision  of  the  state,  bounded 
and  organized  under  the  authority  of  the  legislature  for  the 
governmental  purpose  of  providing  protection  against  fire  within 
its  limits,  maintaining  street  lights,  and  other  subsidiary  mat- 
ters. Although  composed  of  a  part  of  one  or  more  towns,  it 
is  in  substance  a  quasi  municipal  corporation  of  definitely  re- 
stricted powers.1  It  may  raise  money  by  taxation  for  its  legit- 
imate uses.  The  kind  of  taxation  which  a  fire  district  is 
authorized  to  levy  belongs  in  its  essential  characteristics  to  the 
class  of  general  taxes  rather  than  special  assessments.2  It  is  to 
be  noted  that  in  the  statutes  quoted  above  the  taxes  of  the 
district  are  to  be  assessed  upon  the  property,  real  and  personal, 
within  the  district,  and  not  upon  the  real  estate  within  the  dis- 
trict and  the  personal  property  of  those  residing  within  its  limits. 
The  effect  of  this  proviso  is  to  exempt  the  tangible  property 
of  a  resident  of  the  district  which  is  kept  outside  the  district 
from  district  taxes,  even  although  it  is  kept  in  the  town  in 
which  the  district  is  situated.3  Intangible  property  however 
such  as  stocks  and  bonds  having  no  location  except  where  the 
owner  lives  is  taxable  for  district  taxes  if  the  owner  lives  in 
the  district,4  except  so  far  as  exempted  by  the  provisions  of 
the  Income  Tax  Act.  There  is  an  exception  in  favor  of  shares 
in  a  national  bank  which  being  taxable  only  in  such  way  as  the 
legislature  under  permission  of  Congress  has  authorized  are 

1  Prout  v.  Pittsfield  Fire  District,  154  Mass.  450  (1891);  Williams  College 
v.  Williamstown,  219  Mass.  46  (1914). 

2  Williams  College  v.  Williamstown,- 219  Mass.  46   (1914). 

3  Dwight  v.  Springfield  Centre  Fire  District,  11  Met.  374  (1846). 

4  Dwight  v.  Springfield  Centre  Fire  District,  11  Met.  374  (1846). 


164  Taxation   in    Massachusetts 

[G.L.c.  51 
not  subject  to  district  taxes.5  As  the  statutes  do  not  contem- 
plate annual  appropriations  for  the  expenses  of  districts  and 
the  levy  of  an  annual  tax  therefor,  but  appropriations  are  made 
and  taxes  levied  when  expenses  are  to  be  incurred,  a  person 
who  is  a  resident  of  a  district  on  the  first  day  of  April  but  who 
moves  away  with  his  property  before  the  meeting  at  which 
an  appropriation  is  voted  and  a  tax  authorized  occurs,  is  not 
liable  for  the  tax  so  authorized.6  District  taxes  being  general 
taxes  rather  than  special  assessments,  a  statutory  exemption 
from  taxation  includes  taxes  levied  by  a  fire  district.7  In  addi- 
tion to  the  districts  organized  in  accordance  with  the  above 
statutes  there  are  a  number  of  water  districts,  established  for 
the  purpose  of  furnishing  a  water  supply  to  the  inhabitants 
of  the  more  thickly  populated  sections  of  certain  towns.  As 
such  districts  generally  require  to  take  their  water  supply  by 
eminent  domain  and  often  outside  the  limits  of  the  district 
and  as  even  towns  and  cities  have  no  general  power  to  exercise 
the  power  of  eminent  domain  to  acquire  a  water  supply,  it  has 
been  the  policy  of  the  commonwealth  to  grant  charters  to 
water  districts  only  by  special  statute,  so  that  the  legislature 
can  in  each  case  weigh  the  merits  of  various  conflicting  claims 
to  the  desired  body  of  water. 

CHAPTER   51 

VOTERS 

The  chapter  relating  to  voters  imposes  certain  obligations 
upon  the  local  boards  of  assessors.  Thus,  section  4  requires 
the  assessors  each  year  in  April  or  May  to  visit  every  building 
within  their  respective  cities  and  towns  and  to  make  a  list  of 
male  persons  twenty  years  of  age  or  older  liable  for  a  poll  tax. 
Section  4  also  provides  for  the  correction  of  the  original  lists. 

Section  5  provides  for  the  transmission  to  the  registrars  of 
voters  and  collectors  of  taxes  of  additions  and  corrections  in 
the  lists.  Sections  6  and  7  require  the  assessors  to  provide  street 
lists  of  persons  assessed  for  poll  taxes.    Section  8  provides  for 

5  Little  v.  Little,  131  Mass.  367  (1881);  Rich  v.  Packard  National  Bank,  138 
Mass.  527  (1885). 

6  Savary  v.  School  District  in  Georgetown,  4  Gray  254  (1878). 

7  Williams  College  v.  Williamstown,  219  Mass.  46  (1914). 


General  Provisions  Relative  to  Taxation  165 

.  G.  L.  c.  58  §  1-8] 

the  establishment  by  a  male  resident  not  assessed  for  a  poll  tax 
of  his  right  to  be  assessed  and  section  11  for  the  assessment  and 
collection  of  a  poll  tax  upon  such  a  person. 

CHAPTER   56 

VIOLATION  OF  ELECTION  LAWS 

Penalty  for  False  Entry  by  Assessor 

Section  1.  An  assessor  or  assistant  assessor  who  knowingly 
enters  on  any  list  of  assessed  polls,  or  causes  or  allows  to  be  entered 
thereon,  the  name  of  any  person  as  a  resident  of  a  building,  who  is 
not  a  resident  thereof,  shall  be  punished  by  imprisonment  for  not 
more  than  six  months. 

CHAPTER   58 

GENERAL  PROVISIONS  RELATIVE  TO  TAXATION 

Supervision  of  Local  Taxation 

Sections  1  to  8  inclusive  relate  to  the  supervision  of  local  tax- 
ation by  the  commissioner  of  corporations  and  taxation.1  Section 
1  gives  the  commissioner  in  general  terms  power  to  inspect 
the  work  of  the  local  assessors  and  to  require  of  them  action 
which  will  tend  to  produce  uniformity  throughout  the  com- 
monwealth in  matters  of  assessment  and  valuation.  It  also 
authorizes  him  to  furnish  the  local  assessors  with  printed 
instructions  and  blank  forms;  to  prosecute  them  for  violation 
of  the  tax  laws,  to  appear  before  the  county  commissioners  or  the 
court  when  passing  upon  the  abatement  of  taxes  and  to  give 
his  opinion  to  assessors  and  collectors  or  to  obtain  an  opinion 
from  the  attorney  general  upon  questions  relating  to  the  assess- 
ment and  collection  of  taxes. 

Sections  2  and  3  require  the  commissioner  to  forward  to  the 
assessors  lists  of  corporations  liable  to  local  taxation  and  all 
other  information  relative  to  assessment  of  property  that  has 
come  into  the  possession  of  his  department.  Section  4  provides 
that  when  it  appears  that  the  failure  of  the  assessors  to  value 
property  in  accordance  with  law  is  due  to  improper  methods 
the  commissioner  shall  direct  them  as  to  the  proper  methods, 

1  As  to  the  appointment  of  the  commissioner  and  his  subordinates  see 
G.  L.  c.  14,  supra  page  139. 


166  Taxation   in    Massachusetts 

[G.  L.  c.  58  §§  1-8 

and  on  their  failure  to  comply  with  his  directions  shall  notify 
the  mayor  or  the  selectmen  of  their  city  or  town.  Section  5 
provides  that  the  commissioner  shall  give  instructions  for  pre- 
paring notices  in  regard  to  bringing  in  lists  of  taxable  property 
and  prescribe  forms  for  such  lists;  and  section  6  provides 
that  the  commissioner  may  collect  and  tabulate  information 
in  regard  to  the  sale  price  and  actual  value  of  real  estate  in 
the  several  towns. 

Section  7  provides  that  the  commissioner  shall  secure  infor- 
mation as  to  unpaid  taxes  and  section  8  provides  that  when 
it  appears  that  local  taxes  have  not  been  collected  within  three 
years  after  the  commitment  of  the  warrant  to  the  collector,  or 
if  collected  have  not  been  turned  over  to  the  town  treasurer, 
he  shall  cause  suit  to  be  brought  upon  the  collector's  bond. 

The  assessment  and  collection  of  local  taxes  was  carried  on 
by  the  local  authorities  until  1861  without  any  supervision  or 
control  from  the  state,  and  until  1898  the  tax  commissioner  had 
little  to  do  with  the  assessment  of  local  taxes  except  in  case  of 
a  conflict  between  the  valuation  by  the  local  assessors  of  real 
estate  and  machinery  of  domestic  corporations  and  his  valua- 
tion of  the  same  property  as  a  deduction  from  the  corporate 
franchise  tax.2  In  1898  the  tax  commissioner  was  given  power 
to  visit  any  city  or  town  within  the  commonwealth  to  inspect 
the  work  of  the  assessors  and  to  advise  them  as  to  their  duties. 

In  1907  a  commission  on  taxation  was  appointed 3  and  re- 
ported the  need  of  greater  uniformity  in  the  administration  and 
enforcement  of  the  law  throughout  the  commonwealth,  and, 
as  a  result,  in  the  following  year  the  tax  commissioner  was 
given  power  to  appoint  three  supervisors  of  assessors  who  were 

2  See  G.  L.  c.  59,  §  74  infra  page  303;  c.  63,  §  57,  infra  page  580.  In  1861 
provision  was  made  for  the  furnishing  of  blank  books  with  printed  tables  by 
the  secretary  of  the  commonwealth  to  be  used  in  the  assessment  of  taxes 
(St.  1861,  c.  167,  see  new  G.  L.  c.  59,  §  45,  infra  page  243)  and  the  assessors 
were  required  to  file  with  the  secretary  tables  of  aggregates.  In  1864  the 
assessors  were  required  to  file  with  the  secretary  of  the  commonwealth  a  state- 
ment of  the  cause  of  any  diminution  in  the  valuation  of  their  town  (St.  1864. 
c.  210,  now  G.  L.  c.  59,  §  84,  infra  page  313) .  In  1865  the  assessors  were 
required  to  file  with  the  tax  commissioner  a  statement  of  the  amount  of  taxes 
assessed  during  each  year  (St.  1865,  c.  283).  In  1874  the  assessors  were  required 
to  file  with  the  tax  commissioner  a  statement  showing  the  amount  of  exempted 
property  in  their  town  (St.  1874.  c.  227,  now  G.  L.  c.  59,  §  86,  infra  page  313) . 
In  1882  the  tax  commissioner  was  authorized  to  prescribe  forms  for  lists  of 
taxable  property  (St.  1882.  e.  217.  now  G.  L.  c.  58,  §  5,  supra  page  165). 

3  Under  c.  129  of  the  Resolves  of  1907 


General  Provisions  Relative  to  Taxation  167 

G.L.c.  58  §§9,10] 

to  furnish  the  local  assessors  with  information  concerning  tax- 
able property  within  their  jurisdiction  and  to  direct  the  assess- 
ors to  make  such  use  of  the  information  so  furnished  as  the 
tax  commissioner  should  deem  necessary.  The  supervisors  of 
assessors  proved  of  great  assistance  to  the  local  assessors,  es- 
pecially in  the  years  prior  to  the  enactment  of  the  income  tax 
law  when  the  effort  was  being  made  to  tax  intangible  personal 
property  at  its  capital  value,  and  their  power  to  advise  is  still 
of  importance;  but  the  ultimate  responsibility  is  with  the 
assessors,  and  if  they,  notwithstanding  the  directions  of  the 
commissioner  refuse  to  increase  the  valuation  of  any  property, 
he  has  no  means  of  compelling  them  to  do  so.4 

In  1912,  as  the  result  of  the  disclosure  of  lax  methods  of  some 
local  collectors  in  enforcing  payment  of  taxes,  the  statutes  now 
appearing  as  sections  7  and  8  were  enacted. 

Apportionment  of  the  State  Tax 

Section  9  (as  amended  by  St.  1921,  chap.  379,  §  1).  In  nineteen 
hundred  and  twenty-two  and  in  every  third  year  thereafter,  the  com- 
missioner shall,  on  or  before  April  first  report  to  the  general  court 
an  equalization  and  apportionment  upon  the  several  towns,  of  the 
number  of  polls,  the  amount  of  property,  and  the  proportion  of  every 
one  thousand  dollars  of  state  or  county  tax,  including  polls  at  one 
tenth  of  a  mill  each,  which  should  be  assessed  upon  each  town. 

Section  10  (as  amended  by  St.  1921,  chap.  379,  §  2).  To  aid 
in  making  the  equalization  and  apportionment  required  by  the  pre- 
ceding section,  and  to  assist  the  general  court  to  determine  the 
amount  of  state  tax  to  be  imposed  upon  the  several  towns,  the  com- 
missioner shall  prepare  and  submit  to  the  general  court  abstracts 
showing  the  amount  of  the  corporate  franchise  value  of  domestic 
corporations,  of  the  excise  value  as  determined  by  the  commissioner 
of  domestic  business  and  foreign  corporations,  and  of  the  value  of 
the  shares  of  banks,  the  shares  of  which  are  subject  to  taxation  under 
section  one  of  chapter  sixty -three,  represented  by  the  taxes  distributed 
according  to  law  to  each  town.  He  may  require  from  state  and  town 
officers  such  further  returns  and  statements  relative  to  the  amount 
and  value  of  taxable  property  in  the  several,  towns  as  he  deems 
necessary.  He  shall  to  the  best  of  his  judgment  and  discretion  pre- 
pare  said   equalization    and   apportionment   upon   the   basis   of   the 

4  See  also  as  to  revision  of  valuation  on  recommendation  of  the  com- 
missioner, G.  L.  c.  59,  §  76,  infra  page  306. 


168  Taxation   in   Massachusetts 

[G.  L.  c.  58  §§  9, 10 
returns  and  statements  provided  for  and  authorized,  and  of  any 
other  information  in  his  possession.  He  shall  give  notice  of  so  much 
of  said  equalization  and  apportionment  as  may  be  prepared  upon  the 
basis  of  such  other  information  in  his  possession  to  the  assessors 
of  any  town  affected  thereby,  and  upon  their  request  shall  give  his 
reasons  therefor,  and  such  information  as  he  may  properly  divulge. 

The  state  tax  is  actually  assessed  by  an  annual  act  of  the 
legislature,  the  amount  to  be  assessed  being  determined  by 
deducting  the  estimated  receipts  of  the  commonwealth  in  the 
form  of  taxes  on  corporations,  inheritance  taxes  and  other 
sources,  from  the  total  appropriations  made  by  the  legislature 
and  required  to  be  expended  during  the  year,  the  tax  being 
commonly  reckoned  in  even  millions  of  dollars.  The  annual 
act  of  the  legislature  for  the  assessment  of  the  state  tax  is  thus 
what  in  parliamentary  language  is  usually  called  a  "deficiency 
bill." x 

The  amount  being  thus  determined,  the  proportion  of  each 
city  or  town  is  ascertained  by  reference  to  the  latest  triennial 
apportionment,  the  apportionment  being  prepared  by  the  com- 
missioner but  enacted  into  law  by  the  legislature.2  The  annual 
statute  apportioning  the  tax  first  assesses  each  city  or  town  for 
its  proportionate  amount,  then  directs  the  treasurer  of  the  com- 
monwealth to  send  his  warrant  to  the  assessors  of  each  city  or 
town  requiring  them  to  assess  the  sum  charged  and  add  the 
same  to  their  county,  city  or  town  taxes,  and  to  pay  or  cause 
their  respective  city  or  town  treasurers  to  pay  the  same  to  him, 
and  provides  for  enforcement  of  the  tax  by  warrant  of  distress 
against  the  cities  or  towns.3 

The  annual  tax  act  is  an  inheritance  from  the  provincial 
period,  and  statutes  very  similar  in  form  to  those  enacted  now 

1  Providence  Institution  for  Savings  v.  Boston,  101  Mass.  575,  589  (1869). 

2  The  latest  apportionment  prior  to  the  publication  of  the  present  edi- 
tion of  this  work  was  in  1919  (St.  1919,  c.  343).  This  apportionment  was  notable 
as  being  the  first  to  reflect  the  exclusion  of  intangible  personal  property  from 
local  taxation  which  resulted  from  the  enactment  of  the  income  tax  law  in 
1916.  To  determine  the  share  of  any  city  or  town  in  the  state  tax  of  any 
year,  the  figure  set  against  its  name  in  the  third  column  of  the  apportionment 
should  be  multiplied  by  as  many  thousands  as  there  are  million  dollars  in  the 
state  tax.  Thus  if  the  figure  in  the  third  column  (headed  "Tax  of  $1000  in- 
cluding polls  at  one  tenth  of  a  mill  each")  is  $1.95  for  a  certain  town  and  the 
total  state  tax  is  fourteen  million  dollars,  the  share  of  the  town  in  question 
would  be  14,000   X   $1.95  or  $27,300,00. 

*  See  for.  example  St.  1921,  c.  492. 


General  Provisions  Relative  to  Taxation  169 

G.L.c.  58  §§9,10] 

appeared  every  year  among  the  provincial  statutes.  These  stat- 
utes, however,  authorized  the  assessment  of  local  taxes  as  well 
as  of  the  state  tax  and  contained  all  the  provisions  for  assess- 
ment, abatement  and  exemptions  now  found  in  the  general 
laws.  It  was  not  until  after  the  Revolution  that  any  of  these 
subjects  began  to  be  covered  by  permanent  enactments;  and 
the  annual  tax  acts  contained  all  the  law  on  the  subject  of 
assessments  until  the  Revised  Statutes  of  1836.  Since  that 
year  the  annual  tax  acts  have  related  only  to  the  state  tax. 

Until  comparatively  recent  times  the  apportionment  of  the 
state  tax  was  based  upon  the  aggregate  valuations  of  the  respec- 
tive cities  and  towns  as  determined  by  their  own  boards  of 
assessors,  and  until  1861  no  provision  was  made  for  the  assist- 
ance of  the  legislature  in  making  the  apportionment  by  any 
administrative  officer.  In  1861  provision  was  made  for  the  fur- 
nishing of  uniform  assessment  books  to  the  local  assessors  by 
the  secretary  of  the  commonwealth,  and  for  the  publication  of 
copies  of  such  books  by  him  when  filled  out  and  returned  by 
the  assessors,  for  the  benefit  of  the  legislature.4  In  1881  it  was 
made  the  duty  of  the  tax  commissioner  in  every  third  year, 
by  the  use  of  such  books  and  other  returns  as  he  might  re- 
quire, to  prepare  an  apportionment  and  equalization  for  the 
purposes  of  the  state  tax.5  The  state  tax  continued  to  be  act- 
ually assessed  and  apportioned  by  an  annual  act  of  the  legis- 
lature; but  the  legislature  followed  the  tax  commissioner's 
apportionment  as  a  matter  of  course.  Under  this  statute  the 
duties  of  the  tax  commissioner  were  purely  ministerial,  and 
involved  merely  an  arithmetical  calculation,  of  which  the  valu- 
ation of  the  respective  local  assessors  was  the  basis. 

It  was  charged  however  that  the  assessors  of  certain  towns, 
for  the  purpose  of  reducing  the  share  of  their  town  in  the  state 
tax,  intentionally  undervalued  the  property  which  they  as- 
ssessed,  and  in  1911  a  statute  was  enacted  to  meet  this  abuse 
which  provided  that  the  tax  commissioner  might  make  the 
apportionment  upon  the  basis  of  the  assessors'  returns  "and  of 
any  other  information  in  his  possession."6  This  statute  com- 
pletely changed  the  functions  of  the  tax  commissioner  with 

*  St.  1861,  c.  167. 
s  St.  1881,  c.  163. 
«  St.  1911,  c.  366. 


170  Taxation   in    Massachusetts 

[G.L.c.  58  §10A 

respect  to  the  apportionment  of  the  state  tax,  and  gave  him 
power  to  make  the  apportionment  without  regard  to  the 
valuation  of  the  local  assessors,  without  notice  to  them  and 
without  any  obligation  to  state  the  reasons  for  his  decision. 
This  power  he  exercised  in  a  number  of  instances  in  the  apportion- 
ment of  1913,  summarily  increasing  the  valuation  of  certain  towns 
without  notice  to  the  town,  and  in  many  instances  his  appor- 
tionment was  accepted  by  the  legislature  and  enacted  into  law 
before  the  townspeople  were  aware  of  what  had  happened. 

The  power  of  the  tax  commissioner  in  this  direction  was 
somewhat  curtailed  in  1914  by  the  enactment  of  the  statute 
which  now  appears  as  the  last  sentence  of  secti6n  10  and  which 
provides  that  when  the  tax  commissioner  bases  his  apportion- 
ment on  information  other  than  the  assessors'  valuation,  he  shall 
notify  the  assessors  and,  upon  request,  give  his  reasons  therefor.7 
The  statutes  do  not  in  terms  give  a  town  whose  valuation  has 
been  raised  a  right  to  a  hearing  and  an  opportunity  to  contest  in 
a  judicial  tribunal  the  correctness  of  the  "other  information" 
upon  which  the  increase, in  valuation  was  based.  It  may  how- 
ever be  assumed  that  in  case  of  an  arbitrary  and  unwarranted 
increase  in  the  valuation  of  the  town  the  constitutional  rights 
of  the  taxpayers  of  the  town  would  be  protected  by  the  courts 
at  some  stage  of  the  proceedings  even  after  the  apportionment 
has  been  actually  made  by  the  legislature.  The  method  of  col- 
lecting from  a  town  its  proportion  of  the  state  tax  provided  by 
the  annual  tax  acts  is  a  warrant  of  distress;8  but  this  warrant  can 
be  issued  only  after  the  filing  of  an  information  in  the  supreme 
judicial  court  against  the  town,  notice  to  the  town  and  a 
hearing,  so  that  the  town  has  an  opportunity  to  be  heard  in 
case*  of  an  arbitrary  and  unwarranted  increase  in  its  valuation 
or  the  imposition  upon  it  of  a  disproportionate  share  of  the 
state  tax  in  any  other  manner.9 

Disputed  Corporation  Taxes  as  Offset  to  State  Tax 

Section  10  A  (St.  1921,  chap.  375,  §2).  The  state  treasurer  shall 
allow,  as  an  offset  to  any  amount  due  the.  commonwealth  from  any 
town  on  November  fifteenth  in  any  year  by  way  of  the  state  tax,  a 

7  St.  1914,  c.  689. 

8  See  §  4  of  the  annual  tax  acts. 

9  Chelsea  v.  Treasurer  &  Receiver  General,  237  Mass.  422   (1921). 


General  Provisions  Relative  to  Taxation  171 

G.L.c.  58  §§11-17] 

sum  equal  to  eighty  per  cent  of  the  amount  of  any  taxes  to  be  dis- 
tributed to  such  town  under  sections  twenty  to  twenty-four  A,  in- 
clusive, that  have  been  paid  to  the  commonwealth  on  or  before 
November  first  of  that  year,  but  which  by  reason  of  pending  questions 
of  abatement  or  otherwise  cannot  be  immediately  distributed. 

Adjustment  of  Veterans'  Exemptions 

Sections  11  and  12  contain  provisions  for  equalizing  the 
burden  upon  towns  in  the  commonwealth  arising  from  statutes 
which  exempt  from  taxation  certain  limited  amounts  of  prop- 
erty owned  by  veterans  of  certain  designated  wars.  Section 
11  provides  that  one- third  of  the  total  amount  of  taxes  so  ex- 
empted shall  be  charged  against  the  towns  of  the  commonwealth 
in  the  same  proportions  as  the  state  tax,  and  that  one-third  of 
the  amount  so  exempted  in  each  town  shall  be  a  credit  to  the 
town  against  the  other  requirements  of  the  state.  This  section 
also  provides  for  notice  to  the  respective  towns  of  the  charges 
and  credits  and  affords  an  opportunity  of  appeal  to  the  board 
of  appeal.  Section  12  directs  the  commissioner  of  corporations 
and  taxation  to  certify  the  charges  and  credits  under  section  11 
to  the  state  treasurer,  and  provides  that  he  shall  withhold  them 
out  of  sums  payable  to  the  towns  by  the  commonwealth,  or  pay 
them  over,  as  the  case  may  be. 

Reimbursement  for  Loss  of  Taxes  on  Land  Used 
for  Public  Institutions 

Sections  13  to  17  inclusive  contain  elaborate  provisions  which 
were  first  enacted  in  1910  for  the  annual  payment  by  the  com- 
monwealth to  the  towns  in  which  the  land  is  situated  of  certain 
amounts  in  lieu  of  taxes  on  land  owned  by  the  commonwealth 
and  used  for  a  public  institution,1  or  for  afish  hatchery,  game  pre- 
serve, state  military  camp  ground  or  state  forest.2  The  object 
of  these  statutes  is  the  equitable  one  of  not  throwing  the  burden 
of  the  exemption  upon  the  towns  in  which  institutions  estab- 

1  G.  L.  c.  63,  §58,  infra  page  582.  Under  G.  L.  c.  58,  §  13,  this  pro- 
vision was  limited  to  public  institutions  under  the  department  of  mental 
diseases,  the  department  of  public  welfare  or  the  department  of  correction; 
but  by  St.  1921  c.  486  §  15  this  limitation  was  stricken  out. 

2  By  St.  1921  c.  282  provision  was  made  that  with  respect  to  land  used 
for  a  state  forest  there  should  be  deducted  from  the  valuation  used  for  purposes 
of  reimbursement  the  value  of  all  forest  products  removed  from  the  land 
since  the  first  day  of  April  on  which  it  was  last  assessed, 


172  Taxation   in    Massachusetts 

[G.  L.  c.  58  §  18 
lished  for  the  benefit  of  the  whole  state  are  located.  It 
is  to  be  noted  that  these  provisions  apply  only  to  land  and  do 
not  include  buildings.  The  statutes  provide  that  the  valuation 
of  this  land  shall  be  made  in  every  fifth  year  by  the  com-« 
missioner  of  corporations  and  taxation,  with  a  right  of  appeal 
to  the  board  of  appeal;  land  acquired  during  one  of  the  five 
year  periods  retains  its  assessed  valuation  until  the  next  valua- 
tion under  these  statutes  is  made.  The  amount  of  reimburse- 
ment is  determined  by  multiplying  each  thousand  dollars  of 
valuation  or  fraction  thereof  by  the  average  tax  rate  throughout 
the  commonwealth  as  determined  for  the  purposes  of  the  cor- 
porate franchise  tax.3 

Distribution  of  the  Income  Tax 

Section  18.  From  the  taxes  collected  by  the  commonwealth 
on  incomes  under  chapter  sixty-two,  the  state  treasurer  shall  annually 
on  or  before  November  fifteenth  distribute  to  each  city,  town  and 
district  the  percentages  hereinafter  specified  of  an  amount  obtained 
by  subtracting,  from  the  average  amount  of  the  tax  levied  upon 
personal  property  in  such  city,  town  or  district  in  the  years  nineteen 
hundred  and  fifteen  and  nineteen  hundred  and  sixteen,  the  average 
amount,  computed  by  the  commissioner,  that  would  be  produced  by 
a  tax  upon  the  personal  property  actually  assessed  in  each  city, 
town  or  district  for  the  years  nineteen  hundred  and  seventeen  and 
nineteen  hundred  and  eighteen  at  an  average  of  the  same  rates  of 
taxation  as  prevailed  therein  in  the  years  nineteen  hundred  and 
fifteen  and  nineteen  hundred  and  sixteen,  to  wit:  Seventy  per 
cent  for  nineteen  hundred  and  twenty-one,  sixty  per  cent  for  nine- 
teen hundred  and  twenty-two,  fifty  per  cent  for  nineteen  hundred 
and  twenty-three,  forty  per  cent  for  nineteen  hundred  and  twenty- 
four,  thirty  per  cent  for  nineteen  hundred  and  twenty-five,  twenty 
per  cent  for  nineteen  hundred  and  twenty-six,  ten  per  cent  for 
nineteen  hundred  and  twenty-seven. 

The  amount  so  collected  in  any  of  said  years  in  excess  of  the  sum 
necessary  to  make  said  payments  shall  be  distributed  in  proportion 
to  the  amount  of  the  state  tax  imposed  upon  each  town  in  that  year, 
after  deducting  a  sum  sufficient  to  reimburse  the  commonwealth 
for  the  expenses  incurred  in  the  collection  and  distribution  of  said  tax 
and  for  abated  taxes  repaid  under  said  chapter  during  said  year, 

.    3  G.  L.  c.  63,  §  58,  infra  page  582. 


General  Provisions  Relative  to  Taxation  173 

G.L.c.  58  §19] 
which  shall  be  retained  by  the  commonwealth,  and  a  sufficient  sum 

to  be  distributed  for  school  purposes  under  Part  I  of  chapter  seventy. 

In  nineteen  hundred  and  twenty-eight  and  thereafter  all  the  taxes 
so  collected  shall,  after  making  said  deduction,  be  distributed  and 
paid  to  the  several  towns  in  proportion  to  the  amount  of  the  state 
tax  imposed  upon  each  of  them  in  each  year. 

Section  19.  Annually  on  or  before  August  first  the  commissioner 
shall,  upon  the  basis  of  the  information  then  in  his  possession,  notify 
the  assessors  of  each  town  of  the  amount  such  town  is  to  receive  in 
any  distribution  of  the  tax  upon  incomes.  Said  assessors,  in  deter- 
mining the  rate  of  taxation  to  be  levied  upon  taxable  property  for 
the  year,  shall  include  in  the  estimated  receipts  lawfully  applicable 
to  the  payment  of  expenditures  the  aforesaid  amount. 

It  was  provided  in  the  original  Income  Tax  Act,  by  the  es- 
tablishment of  a  formula  designed  to  bring  about  such  a  result 
as  nearly  as  practicable,  that  each  town  should  receive  a  share 
of  the  proceeds  of  the  income  tax  equal  to  the  sum  which  it 
would  have  received  if  the  statutes  authorizing  the  taxation 
of  intangible  personal  property  by  the  towns  had  remained  in 
force.1  The  balance,  if  any,  was  to  be  distributed  in  proportion 
to  the  contribution  of  the  various  cities  and  towns  to  the  state 
tax.  It  was  specifically  provided  that  this  measure  of  distribu- 
tion should  remain  in  force  but  a  single  year,  and  thereafter 
the  distribution  among  the  cities  and  towns  should  be  as  the 
legislature  might  determine.  This  sufficed  for  the  distribution 
during  the  year  1917,  the  first  year  of  the  tax,  when  the  act 
was  more  or  less  in  the  nature  of  an  experiment.  In  the  fol- 
lowing year,  a  similar  provision  was  made  for  the  distribution 
of  the  income  tax,  which  was  in  terms  applicable  only  to  the 
tax  collected  in  the  year  1918.2  In  1919,  however,  as  the  result 
of  a  report  of  a  special  recess  committee,3  the  statute  was  enacted4 
which  is  now  in  force  providing  for  the  permanent  distribution 
of  the  proceeds  of  the  income  tax,  which,  in  substance,  after 
first  establishing  a  formula  for  determining  the  amount  which 
the  towns  would  have  received  if  the  old  method  of  taxing 

1  St.    1916,   c.   269,    §  23. 

2  St.  1917,  c.  317.  A  similar  provision  for  1919  was  made  by  St.  1918,  c. 
219,  but  was  repealed  by  the  permanent  statute  (St.  1919,  c.  314)  before  it  went 
into  effect. 

3  1919  Senate  Document,  No.  313. 
*  St.  1919,  c.  314. 


174  Taxation   in    Massachusetts 

[G.  L.  c.  58  §  19 

intangible  personal  property  had  remained  in  force,  provided  for 
the  gradual  change  of  the  method  of  distribution,  extending 
through  a  ten-year  period,  from  a  distribution  based  primarily 
on  what  the  towns  would  have  received  if  the  old  method  had 
remained  in  force,  with  the  excess  distributed  in  proportion  to 
each  town's  share  of  the  state  tax,  to  a  distribution  based  wholly 
upon  each  town's  proportion  of  the  state  tax.  At  the  end  of  the 
ten-year  period,  in  1928,  and  thereafter,  the  entire  proceeds  of 
the  income  tax,  unless  in  the  meantime  diverted  for  other  pur- 
poses, will  be  distributed  in  proportion  to  the  share  of  each  city 
and  town  in  the  state  tax. 

As  since  1919  the  state  tax  has  been  apportioned  without 
regard  to  intangible  personal  property,5  the  result  of  this  legis- 
lation has  been  to  provide  that  the  proceeds  of  the  income  tax, 
which  is  primarily  a  tax  on  intangible  personal  property,  shall 
be  distributed  to  the  various  cities  and  towns  in  proportion  to 
their  wealth  in  real  estate  and  tangible  personal  property,  and 
as  some  towns  contain  much  wealth  of  the  latter  class  and  little 
intangible  personal  property  of  the  classes  subject  to  the  income 
tax,  and  other  towns  contain  little  wealth  in  real  estate  and 
tangible  personal-  property  and  much  taxable  intangible  prop- 
erty, the  effect  of  the  law  is  to  give  to  some  towns  a  much  larger 
share  in  the  proceeds  of  the  income  tax  than  their  inhabitants 
contribute,  and  to  other  towns  much  less,  and  thus  in  effect  to 
tax  the  inhabitants  of  the  latter  class  of  towns  for  the  use  and 
benefit  of  the  former.  The  supreme  judicial  qourt  however  held 
that  although  the  law  went  to  the  verge  of  the  limits  of  consti- 
tutional power  it  did  not  exceed  them  and  sustained  the  act.6 

It  is  to  be  noted  that  the  provisions  for  distribution  in 
the  act  now  under  consideration  are  subject  to  another  act  passed 
in  the  same  year  providing  for  the  use  of  approximately  four 
million  dollars  from  the  proceeds  of  the  income  tax  as  a  school 
fund  to  be  used  for  reimbursing  cities  and  towns  for  amounts 
paid  by  them  as  salaries  to  school  teachers  when  such  salaries 
were  in  accordance  with  a  certain  scale  established  by  the 
statute.7 

5  See  supra  page  167. 

6  Duffy  v.  Treasurer  &  Receiver  General.  234  Mass.  42  (1919).  See  also 
Dane  v.  Treasurer  &  Receiver  General,  236  Mass.  280  (1920);  Dane  v. 
Treasurer  &  Receiver  General,  237  Mass.  50  (1921),  sustained,  Dane  v.  Jackson. 

U.  S.  (1921). 

7  See  G.  L.  c.  70,  §  §  1-4  inc.,  infra  page  664. 


General  Provisions  Relative  to  Taxation  175 

G.  L.  c.  58  §  20] 

Distribution  of  Tax  on  Business  Corporations 

Section  20.  One  sixth  of  every  tax  paid  by  any  domestic  busi- 
ness or  foreign  corporation  under  sections  thirty  to  fifty-one,  inclusive, 
of  chapter  sixty-three,  shall  be  retained  ,by  the  commonwealth.  The 
remainder  shall  be  distributed,  credited  and  paid  to  the  town  of  the 
commonwealth  where  the  business  of  the  corporation  is  carried  on.  If 
the  corporation  maintains  an  office,  store  or  factory  in  more  than  one 
such  town,  said  remainder  shall  be  distributed,  credited  and  paid  to 
such  towns  in  proportion  to  the  value  of  the  tangible  property  of  the 
corporation  in  each  of  them  on  April  first,  or  on  such  other  day  as  the 
commissioner  shall  determine,  which  value  shall  be  determined  in  such 
manner  as  he  shall  deem  just;  provided,  that  if  the  corporation  does 
not  conduct  its  business  in  Massachusetts  and  does  not  own  any  tangi- 
ble property  in  any  town  of  the  commonwealth,  other  than  furniture 
and  equipment  reasonably  necessary  for  the  use  of  the  clerk  or  other 
executive  officers  of  the  corporation,  all  said  tax  shall  be  retained  by 
the  commonwealth. 

Under  the  original  corporate  franchise  tax  act  it  was  pro- 
vided that  such  proportion  of  the  tax  on  each  corporation  sub- 
ject to  the  tax  as  corresponded  to  the  proportion  of  its  stock 
owned  by  persons  residing  in  this  commonwealth  should  be 
distributed  to  the  several  cities  and  towns  in  which  such  persons 
resided,  according  to  the  number  of  shares  owned  by  persons 
resident  in  each  city  or  town.1  This  provision  formed  an  im- 
portant part  of  the  original  scheme  of  the  corporate  franchise 
tax,  the  purpose  of  which  was  to  give  to  the  towns  a  share  of 
this  tax  corresponding  to  that  which  under  the  former  system 
they  had  received  from  the  tax  on  the  shares  of  these  corpora- 
tions, or,  in  other  words,  to  measure  the  share  of  each  town 
in  the  excise  tax  by  the  number  of  shares  which  under  the  former 
system  would  have  been  taxable  in  that  town.2  Such  proportion 
of  the  tax  on  each  corporation  as  corresponded  to  the  number 
of  shares  owned  by  persons  not  residing  in  this  commonwealth 
was  retained  by  the  commonwealth. 

In  course  of  time  other  provisions  were  adopted  for  the  dis- 
tribution of  the  tax  on  public  service  companies,3  but  the  method 

1  St.  1864,  c.  208,  §  8. 

2  Worcester  v.  Board  of  Appeal,  184  Mass.  460,  466  (1904). 

3  G.  L.  c.  58,  §  §  22,  23  and  24,  infra  pages  177,  178. 


176  Taxation   in   Massachusetts 

[G.  L.  c.  58  §  20 

of  distribution  of  the  tax  on  domestic  business  corporations  re- 
mained unchanged  until  1908.  In  that  year  it  was  provided 
that  one-half  of  the  tax  upon  domestic  business  corporations 
which  would  under  the  statutes  previously  in  force  have  been 
paid  to  the  towns  in  which  the  stockholders  dwelt  should  be 
credited  to  the  town  in  which  the  business  of  the  corporation 
was  carried  on.4  In  1910  the  whole  of  the  portion  of  the  tax 
on  each  corporation  proportionate  to  the  shares  held  by  resi- 
dents of  the  commonwealth  was  made  distributable  to  the  towns 
in  which  the  business  of  the  corporation  was  carried  on.5  The 
effect  of  this  change  was  of  course  to  decrease  the  proportion 
of  the  corporation  tax  distributed  to  residential  towns  and 
to  increase  the  proportion  distributed  to  manufacturing  and 
commercial  towns  to  a  marked  degree,  but  the  constitutionality 
of  the  statutes  which  effected  the  change  was  not  open  to 
question,  because  it  was  clearly  within  the  discretion  of  the 
legislature  to  determine  whether  the  situs  of  the  stock  of  a  cor- 
poration, for  purposes  of  taxation,  should  be  the  domicile  of 
the  stockholders  or  the  place  where  the  business  of  the  corpor- 
ation was  carried  on.6 

The  share  of  the  commonwealth  in  the  tax  on  domestic  busi- 
ness corporations,  representing  the  proportion  of  the  stock  held 
by  non-residents,  amounted  each  year  to  approximately  one- 
sixth  of  the  whole;  and  after  the  domicile  of  the  stockholders 
had  ceased  to  be  a  measure  in  the  distribution  of  the  tax  among 
the  cities  and  towns,  in  order  to  avoid  the  clerical  work  necessary 
to  ascertain  the  domicile  of  the  stockholders  now  required  merely 
to  fix  the  share  of  the  commonwealth,  it  was  provided  that  the 
share  of  the  commonwealth  should  in  each  year  constitute  one- 
sixth  of  the  whole.7 

In  1919  foreign  business  corporations  doing  business  in  Mass- 
achusetts were  subjected  to  a  tax  similar  to  that  imposed  on 
domestic  corporations,  and  the  method  of  distribution  being 
the  same,8  foreign  corporations  were  included  in  the  foregoing 
section  of  the  statutes. 

*  St.  1908,  c.  614. 

5  St.  1910,  c.  456. 

6  Supra,   Part  I,  §'§  44,  45. 

7  St.  1919  c.  355,  I,  §  13. 

8  St.  1919,  c.  355.  II,  §  31. 


General  Provisions  Relative  to  Taxation  177 

G.L.c.  58  §§21,22] 

Distribution  of  Tax  on  Trust  Companies 

Section  21.  Such  proportion  of  the  tax  paid  by  each  cor- 
poration, company  or  association  under  sections  fifty-three  to  sixty, 
inclusive,  of  chapter  sixty-three,  except  railroad,  street  railway,  elec- 
tric railroad,  telephone,  telegraph,  gas,  electric  light,  gas  and  electric 
light  and  water  companies,  as  corresponds  to  the  proportion  of  its 
stock  owned  by  persons  residing  in  this  commonwealth,  shall  be 
distributed,  credited  and  paid  to  the  several  towns  in  which,  from 
the  returns  or  other  evidence,  it  appears  that  such  persons  resided 
on  April  first  preceding,  according  to  the  number  of  shares  so  held 
in  such  towns  respectively.  If  stock  is  held  by  a  fiduciary,  the  bene- 
ficiary shall  be  regarded  as  the  shareholder  for  the  purpose  of  dis- 
tribution under  this  section,  and  if  a  town  is  a  shareholder,  the 
distribution  shall  be  the  same  as  if  the  stock  were  owned  by  a 
resident  thereof. 

This  statute  is  the  section  of  the  original  1864  statute  re- 
lating to  the  distribution  of  the  corporate  franchise  tax,  as 
amended  from  year  to  year ;  but  in  course  of  time  other  provision 
has  been  made  for  almost  every  class  of  corporations  and  the 
only  corporations  now  subject  to  its  provisions  are  trust  com- 
panies, and  possibly  a  few  banks  established  under  the  provi- 
sions of  statute  not  now  in  force  and  a  few  corporations 
organized  by  a  special  act  prior  to  1831. 

Distribution  of  Tax  on  Street  Railway  Companies 

Section  22.  The  tax  paid  by  each  electric  railroad  and  street 
railway  company  under  sections  fifty-three  to  sixty,  inclusive,  of 
chapter  sixty-three  shall  be  apportioned  among  the  several  towns  in 
proportion  to  the  length  of  tracks  operated  by  such  company  in  said 
towns  respectively.  The  share  of  the  tax  paid  by  a  street  railway 
or  an  electric  railroad  company  in  respect  of  its  tracks  upon  locations 
granted  by  the  board  having  charge  of  metropolitan  parks,  of  the 
Wachusett  mountain  state  reservation  or  of  the  Greylock  reservation 
shall  be  apportioned  to  the  commonwealth,  and  credited  by  the  state 
treasurer  to  the  sinking  fund  of  the  loan  to  which  the  expenditure 
for  the  road,  boulevard,  park  or  reservation  in  which  the  tracks  are 
located  was  charged. 


178  Taxation   in   Massachusetts 

[G.L.c.  58  §§23,24 

Prior  to  1898  the  tax  paid  by  street  railway  companies  was 
distributed  to  the  towns  in  which  the  stockholders  dwelt,  in 
the  same  manner  as  the  tax  on  business  corporations,  but  in 
1898  the  present  method  of  distributing  the  tax  in  proportion 
to  the  mileage  of  tracks  in  the  respective  towns  was  adopted.1 

Distribution  of  Tax  on  Railroad,  Telephone  and 
Telegraph  Companies 

Section  23.  The  corporate  franchise  tax  paid  by  railroad, 
telephone  and  telegraph  companies  shall  be  distributed,  credited  and 
paid  to  the  towns  of  the  commonwealth  or  shall  be  retained  by  the 
commonwealth  in  the  manner  following:  Such  part  of  said  tax  paid 
by  each  of  said  corporations  as  is  paid  on  account  of  shares  of  its 
stock  owned  by  non-residents  of  Massachusetts  shall  be  retained  by 
the  commonwealth.  The  remainder  of  said  tax  shall  be  distributed, 
credited  and  paid  to  the  several  towns  in  proportion  to  the  total 
assessed  value  of  property  actually  taxed  in  each  town  for  the  pre- 
ceding year. 

The  tax  on  the  franchises  of  railroad,  telephone  and  telegraph 
companies  was  originally  distributed  in  the  same  manner  as 
the  tax  on  other  corporations,  that  is  to  the  towns  of  the  residence 
of  the  stockholders,  and,  in  the  case  of  stock  owned  by  persons 
not  residents  within  the  commonwealth,  retained  by  the  com- 
monwealth. In  1916  the  present  method  was  adopted.1  It  is 
based  on  the  ground  that  railroads,  telephone  and  telegraph 
companies  derive  their  income  from  people  of  all  parts  of  the 
commonwealth,  and  that  the  most  practical  method  of  dis- 
tributing the  tax  with  approximate  justice  is  to  allow  all  the 
cities  and  towns  of  the  commonwealth  to  share  in  its  distri- 
bution.2 

Distribution  of  Tax  on  Gas,  Electric  Light  and 
Water  Companies 

Section  24.  The  corporate  franchise  tax  paid  by  gas,  electric 
light,  gas  and  electric  light  and  water  companies  shall  be  distributed, 
credited  and  paid  to  the  towns  of  the  commonwealth  or  shall  be  retained 

1  St.  1898.  c.  578.  §  4. 

1  St.  1916,  c.  299,  §  1. 

2  See  Report  of  Special  Commission  on  Taxation  Appointed  under  Chapter 
134,  Resolves  of  1915,  p.  21. 


General  Provisions  Relative  to  Taxation  179 

G.  L.c.  58  §§24A,25] 
by  the  commonwealth  in  the  manner  following :  Such  part  of  said  taxpaid 

by  each  of  said  corporations  as  is  paid  on  account  of  shares  of  its  stock 
owned  by  non-residents  of  Massachusetts  shall  be  retained  by  the 
commonwealth.  The  remainder  of  such  tax  shall  be  distributed,  cred- 
ited and  paid  to  the  town  of  the  commonwealth  where  the  business 
of  the  corporation  is  carried  on;  and  if  any  such  corporation  carries 
on  its  business  in  more  than  one  such  town,  this  part  of  the  tax  paid 
by  it  shall  be  distributed,  credited  and  paid  to  such  towns  in  pro- 
portion to  the  value  of  the  works,  structures,  real  estate,  machinery, 
poles,  underground  conduits,  wires  and  pipes  of  the  corporation  in 
each  of  them  on  April  first,  as  determined  from  the  returns  or  in 
any  other  manner. 

Until  1916  the  tax  on  the  stock  of  gas,  electric  light  and 
water  companies  was  distributed  to  the  towns  in  which  the 
stockholders  dwelt,  the  stock  of  non-residents  being  credited  to 
the  commonwealth,  but  in  1916  upon  the  recommendation  of 
a  special  commission  appointed  in  the  preceding  year,1  the 
present  method  was  adopted.2 

Distribution  of  Interest  on  Overdue  Corporation  Taxes 

Section  24  A  (St.  1921,  chap.  375  §  1).  Interest  received  by  the 
commonwealth  on  overdue  taxes  from  corporations  under  section 
seventy  of  chapter  sixty-three,  shall  be  distributed,  credited  and  paid 
to  the  several  towns  in  the  same  manner  and  proportions  as  the  prin- 
cipal of  such  taxes  is  distributed,  credited  and  paid. 

Determination  of  Amounts  to  be  Distributed 

Section  25  (as  amended  by  St.  1921,  chap.  375,  §  3).  The  com- 
missioner, subject  to  appeal  to  the  board  of  appeal,  shall  ascertain 
and  determine  the  amount  due  to.  each  town  under  sections  twenty 
to  twenty-four  A,  inclusive,  notify  the  treasurer  of  each  town  thereof 
and  certify  the  amount,  as  finally  determined,  to  the  state  treasurer, 
who  shall  thereupon  pay  the  same. 

This  statute  is  in  substantially  the  same  form  as  when  origi- 
nally enacted  in  1865.1  A  decision  by  the  board  of  appeal,  while 
final  and  conclusive  as  between  two  towns  upon  the  question  of 

1  Report  of  Special  Commission  on  Taxation  Appointed  under  Chapter 
134,  Resolves  of  1915,  p    22. 

2  St.  1916,  c.  299.  §  2. 

1  St.   1865,   c.   283,   §  15. 


180  Taxation  in   Massachusetts 

[G.  L.  c.  58  §  26 

the  right  of  either  town  to  a  share  in  the  corporation  tax,  is 
not  binding  upon  individual  stockholders  or  others  who  are  not 
parties  to  the  proceedings,  upon  the  question  of  the  domicile 
of  a  stockholder,  or  conversely  upon  the  town  in  a  controversy 
with  a  stockholder,  even  if  the  domicile  of  such  stockholder  was 
the  very  question  in  issue  before  the  board  of  appeal.2 

Returns  of  Bank  Stock  held  by  Fiduciaries  and 

Partnerships 

Section  26.  A  guardian  who  holds,  or  whose  ward  holds,  shares 
of  stock  in  any  corporation  the  tax  on  whose  shares  is  distrib- 
uted in  whole  or  in  part  according  to  the  residence  of  the  shareholder, 
including  banks  located  in  the  commonwealth  liable  to  taxation, 
and  an  executor,  administrator,  trustee  or  other  person  who  holds 
in  trust  any  such  stock,  shall  annually,  between  April  first  and  tenth, 
return  under  oath  to  the  commissioner  the  names  and  residences,  on 
the  first  day  of  that  month,  of  themselves  and  of  all  such  wards 
or  other  persons  to  whom  any  part  of  the  income  from  such  stock 
is  payable,  the  number  of  shares  of  stock  so  held  and  the  name  and 
location  of  the  corporation. 

A  partnership  shall  annually,  between  April  first  and  tenth,  make 
a  like  return,  stating  the  amount  of  such  stock  owned  by  the  firm,  the 
names  and  residences  of  all  the  partners  and  the  proportional  interest 
or  ownership  of  each  partner  in  said  stock. 

If  a  guardian,  executor,  administrator,  trustee  or  partnership  neg- 
lects to  make  the  returns  required  by  this  section  on  or  before 
April  tenth  of  each  year,  the  commissioner  shall  give  notice  by  mail, 
postage  prepaid,  to  such  fiduciary  or  partnership  of  such  default.  If 
such  fiduciary  or  partnership  omits  to  file  said  return  within  thirty 
days  after  such  notice  of  default  has  been  given,  he  or  it  shall  forfeit 
to  the  commonwealth  not  less  than  five  nor  more  than  ten  dollars 
for  each  day  for  fifteen  days  after  the  expiration  of  said  thirty  days, 
and  not  less  than  ten  nor  more  than  two  hundred  dollars  for  each 
day  thereafter  during  which  such  default  continues,  or  any  other 
sum,  not  greater  than  the  maximum  forfeiture,  which  the  court  may 
deem  just  and  equitable.  Such  forfeiture  may  be  recovered  as  pro- 
vided in  chapter  sixty-three. 

2  Babcock  v.  Slater,  212  Mass.  434  (1912). 


General  Provisions  Relative  to  Taxation  181 

G.L.c.  58  §§27,28] 

This  section  dates  back  to  the  original  corporate  franchise 
tax  act  of  1864 1  and  makes  possible  what  is  sometimes  known 
as  the  "secondary  allocation"  of  the  corporate  franchise  tax; 
that  is  stock  standing  in  the  name  of  a  fiduciary  is  credited  to  the 
town  in  which  the  beneficiary  lives  rather  than  to  the  domicile 
of  the  fiduciary.  The  changes  in  recent  years  in  the  laws  relating 
to  the  distribution  of  the  corporation  tax 2  have  made  this  law 
inapplicable  to  all  corporations  except  those  engaged  in  banking. 
It  applies  however  to  the  direct  tax  on  national  bank  stock  as 
well  as  to  the  corporate  franchise  tax  on  trust  companies. 

Repayment  by  the  State  of  Illegal  Corporation  and 

Inheritance  Taxes 

Section  27.  If  it  shall  appear  that  a  legacy  and  succession  tax 
or  a  tax  or  excise  upon  a  corporation,  foreign  or  domestic,  which  has 
been  paid  to  the  commonwealth,  was  in  whole  or  in  part  illegally 
exacted,  the  commissioner  may,  with  the  approval  of  the  attorney 
general,  issue  a  certificate  that  the  party  aggrieved  by  such  exaction 
is  entitled  to  an  abatement,  stating  the  amount  thereof.  The  treas- 
urer shall  pay  the  amount  thus  certified  to  have  been  illegally  exacted, 
with  interest,  without  any  appropriation  therefor  by  the  general 
court.  No  certificate  for  the  abatement. of  any  tax  shall  be  issued 
under  this  section  unless  application  therefor  is  made  to  the  com- 
missioner within  the  time  prescribed  by  law  for  beginning  legal 
proceedings  to  obtain  a  repayment  of  the  tax.  This  section  shall 
be  in  addition  to  and  not  in  modification  of  any  other  remedies. 

This  section  was  first  enacted  in  1919  to  cure  a  defect  in 
the  tax  laws  previously  existing.  Until  this  statute  was  enacted 
the  commonwealth  had  no  power  to  refund  an  inheritance  or 
corporation  tax  admittedly  illegal  without  requiring  the  taxpayer 
to  go  through  the  form  of  instituting  legal  proceedings.  The 
case  thus  instituted  could  be  allowed  to  go  to  judgment  by  agree- 
ment and  the  judgment  collected  from  the  state  treasury.  This 
statute  without  depriving  the  commonwealth  of  any  substan- 
tial right  avoids  unnecessary  trouble  and  expense  for  the  tax- 
payers. 

Assessment  of  Deposits  with  State  Treasurer 

Section  28.  The  commissioner  shall  annually  assess  upon  every 
corporation  or  organization  required   by   law  to  make  deposits  in 

1  St.  1864,  c.  208.  §  4. 

2  G.  L.  c.  58,  §  20,  supra  page  175. 


182  Taxation    in    Massachusetts 

[G.L.c.  §§  29,30 
trust  with  the  state  treasurer  one  twentieth  of  one  per  cent  of  the 
average  of  such  deposits  by  it  for  the  year  last  preceding  such  assess- 
ment. Such  assessment  shall  be  collected  in  the  same  manner  as 
taxes  upon  corporations. 

This  statute  originated  in  1891  as  a  charge  by  the  treasurer 
and  receiver  general  of  $2500  annually  upon  the  corporations 
making  the  deposits  for  such  extra  clerical  assistance  as  was 
required  for  the  care  and  custody  of  the  deposits.1  In  1901  it 
was  put  into  its  present  form.2 

Annual  Reports  of  Commissioner 

Section  29  requires  the  commissioner  of  corporations  and  tax- 
ation to  make  an  annual  report  to  the  legislature,  in  addition 
to  his  report  relative  to  the  apportionment  of  the  state  tax,  con- 
taining (1)  a  statement  of  the  transactions  of  his  office  for  the 
preceding  year,  with  tables  of  exempt  property;  (2)  a  table 
of  the  aggregate  valuation  of  the  counties,  cities  and  towns; 

(3)  a  table  of  the  amounts  of  property  omitted  from  the  regu- 
lar assessment  and  assessed  in  December  as  omitted  property; 

(4)  a  statement  of  the  amount  of  income  assessed  under  the 
income  tax  act,  and  the  probable  amount  of  taxes  therein.1 

Section  30  authorizes  the  commissioner  after  the  lapse  of 
five  years  to  destroy  certain  returns  required  to  be  filed  with  him, 

i  St.  1891,  c.  233. 

2  St.  1901,  c.  281. 

1  Other  duties  of  the  commissioner  are  as  follows:  Determination  of  value 
of  machinery,  poles,  etc.,  of  telephone  and  telegraph  companies,  Chap.  59, 
§  §  39,  42,  infra  page  270.  Furnishing  books  to  assessors,  Chap.  59,  §  45,  infra 
page  273.  Abatement  of  taxes  on  telephone  and  telegraph  companies.  Chap. 
59,  §  73,  infra  page  302.  Recommending  revision  of  tax,  Chap.  59,  §  76,  infra 
page  306.  Duties  relative  to  taxation  of  forest  lands,  Chap.  61,  §  §  4,  15  infra 
page  426.  Duties  relative  to  plates,  etc.  for  stock  transfer  stamps,  and  contracts 
thereunder,  Chap.  64,  §  4,  infra  page  600.  Power  to  make  rules  and  regulations, 
and  prescribe  forms,  etc.  in  taxation  of  stock  transfers,  Chap.  64  §  7,  infra,  page 
600.  Duties  under  income  tax,  Chap.  62,  §  §  35-53,  infra  pages  491  to  501  inc. 
Duties  relative  to  corporation  taxes,  Chap.  63,  §  §  44-51,  67,  69,  71,  infra  pages 
569  to  573,  589,  591,  593.  Duties  under  inheritance  tax.  Chap.  65,  infra  pages 
605  to  663  inc.  Duties  as  commissioner  of  corporations,  Chap.  156,  §  3.  Duty 
to  petition  for  appointment  of  administrator  of  deceased  person  in  certain 
cases,  Chap.  193,  §  3. 


Assessment  of  Local  Taxes  183 

G.L.c.  59] 

CHAPTER  59 
ASSESSMENT   OF  LOCAL  TAXES 

The  Origin  and  Development  of  the  Statutes 

The  method  of  assessing  the  direct  and  general  tax  now  in 
force  in  Massachusetts  has  come  down  to  us  from  the  first  set- 
tlement of  the  colony  with  few  radical  alterations.  State, 
county  and  town  taxes,  the  two  former  apportioned  upon  the 
different  towns  and  assessed  with  the  town  tax  by  the  local 
assessors  by  an  equal  assessment  upon  polls  and  estates,  have 
been  familiar  from  the  earliest  times.1  It  was  provided  in 
1651  that  "the  lands  and  estates  of  all  men  shall  be  rated  for 
all  town  charges  .  .  .  where  the  lands  and  estates  shall  lie, 
and  their  persons  where  they  dwell."  All  persons  were  to  be 
assessed  and  rated  at  one  shilling  and  eight  pence  by  the  head. 
The  estates  of  all  merchants,  shopkeepers  and  factors  were  to 
be  "assessed  by  the  rule  of  common  estimation,  according  to  the 
will  and  doom  of  the  assessors."  "All  such  persons  as  by  the 
advantage  of  their  arts  and  trades  are  more  enabled  to  help 
bear  the  public  charge  than  common  labourers  and  workmen, 
as  butchers,  bakers,  brewers,  victualers,  smiths,  carpenters,  tay- 
lors,  shoemakers,  joiners,  barbers,  millers  and  masons  with  all 
other  manual  persons  and  artists,  such  are  to  be  rated  for  re- 
turns and  gains,  proportionable  to  other  men  for  the  produce 
of  their  estate."  2  In  1665  it  was  provided  that  "gentlemen 
merchants  strangers"  bringing  goods  into  the  colony  and  making 
"their  escapes  without  any  payment  to  support  the  government 
of  the  place"  might  be  assessed  "according  to  the  cargoes  they 
shall  bring  into  the  country."  3 

It  will  thus  be  seen  that  there  was  established  during  the 
colonial  period  a  poll  tax,  a  tax  on  real  estate  "where  the  lands 
shall  lie,"  a  tax  on  personal  property  where  the  owners  dwelt, 
and  a  tax  on  non-residents  doing  business  in  the  colony;  and 
on  this  same  basis,  subject  to  certain  exceptions  and  qualifica- 
tions which  will  be  noted  later,  the  present  system  of  taxation 

1  Colony  Ordinance,  1651,  Anc.  Chart.,  p.  69;  Newburyport  v.  Essex  County 
Commissioners,  12  Met.  211,  217   (1846). 

2  Anc.  Chart.,  pp.  69,  70. 

3  Anc.  Chart.,  p.  73.  As  to  the  methods  of  valuation  employed  during 
the  colonial  and  provincial  periods,  see  supra  page  87. 


184  Taxation   in    Massachusetts 

[G.L.c.  59 

is  established.  Not  only  can  the  general  system  of  taxation 
be  traced  back  to  the  colonial  legislation  without  any  funda- 
mental alteration,  but  the  same  is  true  of  the  method  of  appoint- 
ing assessors,4  of  collecting  taxes,5  of  appointing  collectors,8  of 
fixing  exemptions 7  and  of  granting  abatements.8 

Students  of  history  will  remember  that  Parliament  main- 
tained its  independence  and  finally  secured  supremacy  over  the 
royal  power  more  than  in  any  other  one  way  by  refusing  to 
"grant"  to  the  king  any  permanent  source  of  revenue,  and  that 
since  the  time  of  Magna  Charta  each  assessment  of  taxes  in 
England  has  been  levied  by  authority  of  a  special  act  of  Parlia- 
ment. The  same  system  was  employed  in  Massachusetts  under 
the  provincial  government,  and  the  general  court  each  year 
enacted  a  statute  which  contained  not  only  authority  for  the 
assessment  of  the  annual  province  tax,  fixed  the  amount  thereof 
and  apportioned  it  upon  the  various  towns,  but  included  all 
the  statutory  provisions  in  force  in  the  province  relating  to 
exemptions  from  taxation  and  to  the  assessment,  abatement  and 
collection  of  direct  taxes  of  every  kind,  for  the  province,  counties, 
towns  or  subordinate  districts,  the  amount  of  the  local  taxes 
being  of  course  fixed  by  the  appropriations  of  the  respective 
towns.  These  provisions  were  enacted  year  after  year  without 
any  alteration  until  some  evil  made  itself  felt  and  was  rectified 
in  the  tax  act  of  the  ensuing  year  and  in  the  acts  of  the  years 
that  followed.  These  statutes  continued  the  system  already 
established,  namely  a  tax  equally  assessed  on  polls,  on  real 
estate  where  it  lay,  on  personal  estate  where  the  owner  dwelt 
and  on  incomes  from  a  trade  or  profession.  In  1742  appeared 
the  first  exception  to  the  rule  that  personal  property  is  taxed 
where  the  owner  dwells,  and  thereafter  merchants,  traders 
and  factors  were  assessed  in  the  towns  in  which  their  shops  were 
located.9    Other  exceptions  came  later.10 

In  1785  a  statute  relating  to  assessors  and  their  duties  made 

4  G.  L.  c.  41,  §  §  24-27  inc.,  supra,  page  154. 

5  G.  L.  c.  60,  infra  pages  319  to  425  inc. 

6  G.  L.  c.  41,  §  §    1,  39,  supra  pages  150,  158. 

7  G.  L.  c.    59,  §  5,  infra  pages  193  to  217  inc. 

8  G.  L.  c.  59,  §  §  59-74  inc.,  infra  pages  282  to  304  inc. 

9  Infra  page  239. 

10  Machinery  employed  in  manufacture  in  1830;  horses  and  cattle  in  1821; 
no  others  before  the  Revised  Statutes. 


Assessment  of  Local  Taxes  185 

G.  L.  c.  59] 

permanent  provision  for  the  abatement  of  taxes  "  and  conse- 
quently the  clauses  relating  to  abatement  were  omitted  from 
the  subsequent  tax  acts.  It  was  further  provided  in  the  same 
statute  that  all  county,  town,  district,  plantation,  precinct  and 
parish  taxes  should  be  assessed  by  the  local  assessors  in  accord- 
ance with  the  rules  contained  in  the  latest  tax  act,12  and  the 
periodic  tax  acts  were  no  longer  passed  annually  and  no  longer 
in  terms  referred  to  the  local  taxes,  but  it  was  not  until  the 
Revised  Statutes  were  enacted  in  1836  that  the  general  pro- 
visions relating  to  the  assessment  of  taxes  were  embodied  in 
a  statute  intended  to  be  permanent.  Since  that  date  the  periodic 
tax  act,  now  passed  annually,  has  contained  only  the  assessment 
and  apportionment  of  the  state  tax.  The  county  taxes  have 
been  imposed  by  authority  of  fixed  and  general  laws,  but  the 
state,  county  and  town  taxes  have  all  been  actually  assessed  by 
the  local  assessors  in  accordance  with  statutes  remaining  in  force 
indefinitely  until  amended  or  repealed  by  the  legislature  and 
defining  with  precision  what  property  is  taxable  and  what  is 
exempt  and  where  and  to  whom  taxable  property  should  be 
assessed.  The  statutes  relating  to  the  assessment  of  taxes  have 
expanded  from  a  few  paragraphs  in  the  Colonial  Laws  and  eleven 
pages  in  the  Revised  Statutes  to  twenty-three  pages  in  the  Gen- 
eral Laws  as  the  more  complex  life  of  the  community  required 
the  introduction  of  greater  detail  in  the  directory  provisions  of 
the  statutes  and  the  development  of  modern  industries  made 
necessary  numerous  exceptions  to  the  old  and  simple  method 
of  taxing  "lands  where  they  lie  and  persons  where  they  dwell," 
but  the  underlying  principles  have  remained  unaltered. 

There  have  however  been  introduced  in  recent  years  excep- 
tions to  the  long  established  rules  which  have  in  some  instances 
effected  considerable  changes  in  the  application  of  the  tax  laws, 
although  the  old  statutes  embodying  the  underlying  principles 
have  never  been  repealed.  Thus  the  tendency,  already  noted, 
to  tax  tangible  personal  property  at  the  place  at  which  it  was 
kept  rather  than  at  the  domicile  of  the  owner  culminated  in 
1918  in  the  enactment  of  a  statute  providing  that  all  tangible 
personal  property,  except  ships  and  vessels,  should  be  taxed 
to  the  owner  in  the  town  where  it  was  situated  on  the  first  day 
of  April. 

"  St.   1785,  c.  50,  §  9. 
"  St.  1785,   c.  50,   §  8. 


186  Taxation    in    Massachusetts 

[G.  L.  c.  59  §  1 

The  taxation  of  intangible  personal  property  for  obvious 
reasons  did  not  trouble  the  colonial  lawmakers;13  but  when 
this  class  of  property  came  into  existence  in  such  quantities  as 
to  constitute  an  important  part  of  the  taxable  property  of  the 
commonwealth,  the  difficulties  inherent  in  attempting  to  tax  it 
at  its  capital  value  as  personal  property  in  the  town  in  which 
the  owner  lived  led  eventually  to  the  removal  of  this  class  of 
property  from  the  jurisdiction  of  the  local  assessors,  first  in 
1864  by  the  enactment  of  the  corporate  franchise  tax  14  and  the 
exemption  of  shares  in  domestic  corporations  from  local  tax- 
ation, and  finally  in  1916  by  the  enactment  of  the  income  tax,15 
which  provided  for  the  taxation  of  all  other  forms  of  taxable 
intangible  property  upon  its  income  by  the  state  and  exempted 
all  such  property  from  local  taxation. 

These  statutes  made  indeed  a  radical  change  in  the  taxing 
system  of  the  commonwealth,  but  to  understand  their  meaning 
and  intent  and  their  relation  to  the  other  provisions  of  the  law, 
the  framework  of  the  law  of  taxation,  which  has  come  down  to 
us  substantially  unaltered  for  nearly  three  centuries,  must  also 
be  appreciated  and  understood. 

The  Poll  Tax 

Section  1.  In  the  year  nineteen  hundred  and  twenty-four  and 
annually  thereafter  a  poll  tax  of  two  dollars  shall  be  assessed  on 
every  male  inhabitant  of  the  commonwealth  above  the  age  of  twenty, 
whether  a  citizen  of  the  United  States  or  an  alien. 

Poll  taxes  were  in  force  in  most  of  the  American  colonies, 
and  before  the  Revolution  a  large  proportion  of  the  public  rev- 
enues was  raised  by  poll  taxes.  Under  modern  conditions,  how- 
ever, poll  taxes  are  not  considered  an  equitable  form  of  taxation, 
and  in  some  states  they  have  been  prohibited  by  constitutional 
provision.  In  Massachusetts  the  poll  tax  is  still  in  force,  but 
is  of  less  relative  importance  than  formerly. 

It  was  provided  in  the  colonial  statutes  that  a  list  should  be 
made  of  all  the  male  persons  in  each  town  from  sixteen  years  old 
and  upwards  and  every  such  person   (except  magistrates  and 

1:1  The  first  mention  of  intangible  property  in  the  Massachusetts  tax  acts 
is  in  St.  1694-5  c.  2,  in  which  "money  at  interest"  is  specifically  included  in  the 
subjects  of  taxation. 

14  Chapter  63,  infra  page  531. 

15  Chapter  62,  infra  page  428. 


Assessment  of  Local  Taxes  187 

G.L.  c.  59  §1] 

elders  of  churches)  should  be  assessed  and  rated  one  shilling 
and  eight  pence  by  the  head.1  During  the  colonial  period  from 
thirty-five  to  forty  per  cent  of  the  total  revenues  from  direct 
taxation  was  raised  by  poll  taxes.  The  annual  tax  acts  of  the 
provincial  period  required  the  assessors  to  assess  all  ratable  male 
polls  above  the  age  of  sixteen  years  at  a  certain  rate  the  poll, 
the  amount  varying  from  year  to  year.2  During  the  provincial 
period  and  in  the  early  tax  acts  enacted  after  independence  was 
established  it  was  the  general  rule  to  levy  one  third  of  the  direct 
taxes  upon  polls.  In  the  tax  acts  enacted  after  1814  the  assess- 
ors were  required  to  assess  one-sixth  of  the  whole  sum  to  be 
raised  on  the  polls,  provided  the  tax  on  each  poll  did  not  exceed 
one  dollar  and  a  half,3  and  this  provision  was  retained  in  the 
Revised  Statutes;  but  the  poll  tax  was  limited  to  persons  from 
sixteen  to  seventy  years  of  age.  In  1843  the  poll  tax  was  further 
limited  to  persons  from  twenty  to  seventy  years  of  age,4  but 
in  the  following  year  the  exemption  of  persons  over  seventy, 
except  paupers  and  persons  under  guardianship,  was  stricken 
out,5  and  since  that  time  there  has  been  no  specific  age  limit  to 
the  assessment  of  the  poll  tax;  but  persons  who  by  reason  of 
age  are  unable  to  contribute  fully  to  the  public  charges  are 
exempt  from  taxation  upon  their  polls.6 

In  1876  it  was  provided  that  women  who  registered  as  voters 
should  be  subject  to  the  poll  tax7  and  in  1879  that  the  whole 
state  and  county  taxes  should  be  assessed  upon  the  polls  to  an 
amount  not  in  excess  of  one  dollar  for  each  tax  upon  each  poll.8 
In  1901  the  statute  imposing  a  poll  tax  upon  women  voters 
was  repealed,  and  a  uniform  poll  tax  of  two  dollars  upon  every 
male  inhabitant  above  the  age  of  twenty  years  was  established.9 

In  1919,  in  order  to  make  partial  provision  for  the  payment  of 

1  Anc.   Chart.,  p.  70. 

2  For  example,  in  the  act  of  1715-16  (St.  1715-16,  c.  11,  §2)  the  poll 
tax  was  five  shillings;  in  the  act  of  1777-78  (St.  1777-8  c.  13,  §  2),  the  poll  tax 
was   twenty   shillings. 

3  For  example.  St.  1821,  c.  107,  §3;  St.  1830  c.  151.  §3. 

4  St.  1843,  c.  87;  Opinion  of  the  Justices,  5  Met.  591.  595  (1843). 

5  St.  1844,  c.  145. 

6  G.  L.  c.  59,  §5,  cl.  18. 

7  St.  1876,  c.  225,  §§1,  7. 

8  St.  1879.  c.  299.  §  1. 

0  St.  1901,  c.  424,  §  1.  As  to  the  registration  of  persons  liable  to  the 
poll  tax  see  supra  page  164.  As  to  where  poll  taxes  are  assessed  see  injra 
page  220. 


188  Taxation   in    Massachusetts 

[G.L.c.  59  §2 

a  "bonus"  to  residents  of  the  commonwealth  who  served  in  the 
army  or  navy  of  the  United  States  during  the  war  with  Ger- 
many, an  additional  poll  tax  of  three  dollars  was  imposed  for 
a  five  year  period,  making  the  total  poll  tax  on  each  person  liable 
thereto  five  dollars  for  each  year  from  1919  to  1923  inclusive.10 
Each  town  was  made  responsible  to  the  state  for  three  dollars  for 
each  person  living  within  its  limits  liable  to  the  poll  tax,  whether 
the  tax  was  collected  or  not.  Persons  entitled  to  receive  the 
bonus,  and  veterans  of  the  Spanish  war  and  the  Philippine  in- 
surrection are  entitled  to  have  the  additional  poll  tax  abated.11 
It  was  early  held  that  the  polls  of  aliens  may  within  the 
intent  of  the  constitution  be  ratable  polls  when  they  were  made 
liable  by  the  legislature  to  be  rated  to  public  taxes.12  It  was 
held  in  1842  that  the  polls  of  minors  who  are  in  the  service  of 
a  manufacturing  corporation  and  receiving  salaries  therefrom 
cannot  legally  be  assessed  to  such  corporation  as  their  "mas- 
ter." 13  The  assessment  of  half  a  poll  tax  upon  an  individual  is, 
it  seems,  illegal.14  A  poll  tax  may  be  constitutionally  levied 
without  notice  to  the  persons  assessed,  since  a  notice  would  be  of 
no  advantage  to  them.15 

What  Property  is  Subject  to  Taxation 

Section  2.  All  property,  real  and  personal,  situated  within 
the  commonwealth,  and  all  personal  property  of  the  inhabitants  of 
the  commonwealth  wherever  situated,  unless  expressly  exempt,  shall 
be  subject  to  taxation. 

Although  this  section  of  the  General  Laws  and  the  two  sec- 
tions immediately  following  it  purport  to  establish  what  prop- 
erty is  subject  to  taxation  in  this  commonwealth,  no  property 
can  be  lawfully  taxed  unless  the  statutes  further  define  where 
and  to  whom  it  is  to  be  assessed.  Accordingly  the  subsequent 
sections  which  purport  merely  to  fix  the  place  of  assessment  and 
the  person  who  should  be  assessed  for  property  made  taxable 

i°  St.  1919,  c.  283. 

«  St.  1920,  c.  608.  By  St.  1918,  c.  49  as  amended  by  St.  1919,  c.  9  persons 
in  the  army  or  navy  were  exempt  from  the  entire  poll  tax  during  the  war. 
These  statutes  were  repealed  by  St.  1921,  c.  226. 

12  Opinion  of  the  Justices,  7  Mass.  523  (1811). 

13  Boston  &  Sandwich  Glass  Co.  v.  Boston,  4  Met.  181  (1842). 

14  Southampton  v.  Easthampton,  8  Pick.  380  (1829). 
"  Hagar  v.  Reclamation  District,  111  U.  S.  701  (1884). 


Assessment  of  Local  Taxes  189 

G.  L.  c.  59,  §  2] 

by  the  previous  sections  do  in  fact  establish  what  property  is 
taxable.1  For  example,  although  the  statute  has  stood  in  sub- 
stantially its  present  form  for  many  years  and  the  property 
of  non-residents  and  of  foreign  corporations  situated  within  the 
commonwealth  is  clearly  included  within  its  provisions,  until 
1903  in  the  case  of  foreign  corporations  and  1909  in  the  case  of 
non-residents  there  was  no  authority  for  taxing  such  property 
in  any  particular  city  or  town  within  the  commonwealth  unless 
the  property  was  of  such  a  character  as  to  fall  within  one  of 
the  exceptions  to  the  general  rule  that  personal  property  is 
assessed  in  the  domicile  of  its  owner,  and  consequently  all  other 
such  property  escaped  taxation  in  this  commonwealth  alto- 
gether.2 Legislation  enacted  in  1909 3  to  a  great  extent  remedied 
this  condition ;  but  it  is  still  true  that  certain  property  situated 
within  the  commonwealth  and  not  exempted  from  taxation  is 
not  taxable,  because  no  statute  declares  where  and  to  whom  it 
shall  be  assessed.4  Conversely  it  has  been  held  that  property 
which  the  statutes  declared  should  be  assessed  to  the  owner  in 
a  certain  place  is  taxable  accordingly,  although  not  included 
within  the  provisions  of  the  statute  which  declared  generally 
what  property  should  be  taxable  in  the  commonwealth.5 

Until  1909  the  statutes  authorized  the  taxation  of  tangible 
property  of  inhabitants  of  this  state  even  if  permanently  lo- 
cated in  another  state,6  but  it  may  be  doubted  whether  in  prac- 
tice much  revenue  was  raised  by  taxation  upon  such  property. 

1  G.  L.  c.  59,  §  §  9  to  19  inc.,  infra. 

2  Boston  Investment  Co.  v.  Boston,  158  Mass.  461   (1893). 

3  St.  1909,  c.  516,  §  2,  now  G.  L.  c.  59,  §  18,  clause  first,  infra  page  239. 

4  See  the  following  cases  holding  that  certain  classes  of  property  situated 
within  the  commonwealth  were  not  taxable  because  the  statutes  in  force  at 
the  time  did  not  provide  where  and  to  whom  they  were  to  be  assessed.  Hoadley 
v.  Essex  County  Commissioners,  105  Mass.  519  (1870).  (The  excess  of  the  value 
of  shares  in  an  unincorporated  association  over  the  value  of  the  property). 
Boston  Investment  Co.  v.  Boston.  158  Mass.  461  (1893).  (Money  of  a  foreign 
corporation  deposited  in  a  national  bank  in  this  commonwealth).  City  National 
Bank  v.  Charles  Baker  Co.,  180  Mass.  40  (1901)  (Property  in  the  hands  of  the 
receiver  of  an  insolvent  corporation).  Williams  v.  Boston,  208  Mass.  497 
(1911)  (The  equitable  rights  of  a  person  holding  a  contract  for  the  purchase  of 
land  who  has  made  partial  payment). 

So  also  at  the  present  time  money  and  intangible  property  of  non-residents 
kept  within  the  commonwealth  and  used  in  connection  with  a  business  carried 
on  here  or  otherwise  subject  to  the  taxing  jurisdiction  of  this  commonwealth 
(see  supra,  Part  I,  §  §  44,  45)   is  not  actually  taxed. 

5  Leonard  v.  New  Bedford,  16  Gray  292   (1860). 

6  Bemis  v.  Aldermen  of  Boston,  14  Allen  366  (1867);  Spinney  v.  Lynn, 
172  Mass.  464  (1899). 


190  Taxation   in    Massachusetts 

[G.L.c.  59  §3 

When  decisions  of  the  supreme  court  of  the  United  States  held 
that  a  state  had  no  power  to  tax  tangible  personal  property  perma- 
nently located  outside  its  limits,7  the  Massachusetts  statutes 
were  amended  accordingly,8  and  the  section  of  the  statutes  now 
under  consideration  must  be  construed  in  the  light  of  the  statute 
exempting  from  taxation  merchandise,  machinery  and  animals 
owned  by  inhabitants  of  this  commonwealth  but  situated  in 
another  state.9  Intangible  personal  property  belonging  to  an 
inhabitant  of  this  commonwealth  but  situated  in  another  state 
is  still  subject  to  taxation  by  authority  of  this  commonwealth; 
but  all  intangible  personal  property  which  is  subject  to  direct 
taxation  in  the  hands  of  the  owner  by  the  laws  of  this  common- 
wealth is  reached  by  means  of  the  income  tax  and  is  not  subject 
to  taxation  under  this  chapter. 

Property  of  such  a  nature  that  it  cannot  be  lawfully  sold, 
such  as  intoxicating  liquors,  is  none  the  less  taxable;10  and  the 
property  of  a  person  is  taxable  although  he  is  not  qualified  to 
vote  for  the  officers  by  whom  the  taxes  are  assessed.11 

What  is  Real  Estate  for  the  Purpose  of  Taxation 

Section  3.  Real  estate  for  the  purpose  of  taxation  shall  include 
all  land  within  the  commonwealth  and  all  buildings  and  other  things 
erected  thereon  or  affixed  thereto. 

Mortgages  upon  buildings  or  other  things,  which  with  the  land 
upon  which  they  are  erected  or  to  which  they  are  affixed  are  taxable 
as  real  estate  as  defined  herein,  shall  be  deemed  mortgages  of  real 
estate  for  the  purpose  of  taxation,  and  shall  be  taxed  under  sections 
eleven  to  fourteen,  inclusive. 

All  buildings  erected  on  or  affixed  to  land  are  taxed  as  real 
estate  regardless  of  any  private  agreements  which  may  make 
the  buildings  personal  property  as  between  the  parties  inter- 
ested.1 A  building  affixed  to  land  must  be  taxed  to  the  owner 
of  the  land,  and  cannot  be  taxed  to  anyone  else,  even  if  taxed  as 

7  Supra,  Part  1,  §  43. 

8  St.    1909,    c.    516,    §  1. 

■  9  G.   L.   c.  59,   §4,   clause   19. 

10  Dunbar  v.  Aldermen  of  Boston,  101   Mass.  317  (1869). 
»  Wheeler  v.  Wall,  6  Allen  558  (1863). 

1  Flanders  v.  Cross,  10  Cush.  514  (1852);  Milligan  v.  Drury,  130  Mass.  428 
(1881). 


Assessment  of  Local  Taxes  191 

G.L.c.  59  §4] 

real  estate.-  The  tax  on  land  and  buildings  is  one  and  indivis- 
ible,3 and  the  separate  valuation  of  the  buildings-4  is  required 
merely  to  secure  a  more  specific  valuation  of  each  portion  of 
what  really  constitutes  but  one  item  of  real  estate.5  Machinery, 
on  the  other  hand,  is  not  taxable  as  real  estate,  but  is  taxable 
only  as  personal  property,  even  if  so  attached  to  the  building  in 
which  it  stands  as  to  constitute  real  estate  as  between  grantor 
and  grantee.6 

Water  power  for  mill  purposes  is  not  a  distinct  subject  of 
taxation  and  cannot  be  taxed  independently  of  the  land  to  which 
it  belongs.7  As  under  the  mill  acts  the  power  may  be  used 
by  the  person  who  first  appropriates  it,  it  is  not  treated  as 
property  until  it  is  appropriated,  and  when  it  is  appropriated 
and  used  for  power  it  is  as  between  different  owners  and  mu- 
nicipalities taxed  merely  as  adding  to  the  value  of  the  property 
to  which  it  is  applied;8  but  power  raised  in  this  state  and  applied 
in  another  state  may  be  taxed  as  an  element  of  value  of  the 
land  upon  which  the  power  is  raised.9  When  a  mill  privilege 
is  situated  partly  in  this  state  and  partly  in  another  state,  it 
is  proper  in  assessing  the  privilege  in  this  state  to  take  as  its 
value  the  same  proportion  of  the  entire  value  as  the  fall  in 
the  river  in  this  state  bears  to  the  entire  fall  in  the  river  be- 
longing to  the  privilege.10 

What  Personal  Property  is  Subject  to  Taxation 

Section  4.  Except  as  provided  in  the  following  section  and  in 
chapters  sixty-two  and  sixty-three,  personal  estate  for  the  purpose 
of  taxation  shall  include: 

2  McGee  v.  Salem,  149  Mass.  238  (1889). 

3  Phinney  v.  Foster,  189  Mass.  182  (1905). 

4  G.  L.  c.  59,  §  46,  infra  page  277. 

5  Massachusetts  General  Hospital  v.  Somerville,  101  Mass.  319,  327  (1869), 
Tremont  &  Suffolk  Mills  v.  Lowell,  163  Mass.  283   (1895). 

6  Hamilton   Manufacturing  Co.  v.  Lowell,   185  Mass.   115    (1904). 

7  Boston  Manufacturing  Co.  v.  Newton,  22  Pick.  22  (1839);  Lowell  v. 
Middlesex  County  Commissioners,  6  Allen  131  (1863);  Pingree  v.  Berkshire 
County  Commissioners,  102  Mass.  76  (1869);  Farmington  River  Water  Power 
Co.  v.  Berkshire  County  Commissioners,  112  Mass.  206  (1873);  Fall  River  v. 
Bristol  County  Commissioners,  125  Mass.  567  (1878) ;  Lowell  v.  Middlesex 
County  Commissioners,  152  Mass.  372  (1890);  Essex  Co.  v.  Lawrence,  214  Mass. 
79   (1913). 

8  Boston  Manufacturing  Co.  v.  Newton,  22  Pick.  22  (1839). 

8  Blackstone  Manufacturing  Co.  v.  Blackstone,  200  Mass.  82  (1908). 
10  Blackstone  Manufacturing  Co.  v.  Blackstone,  211  Mass.  14  (1912). 


192  Taxation   in   Massachusetts 

[G.L.c.  59  §4 

First,  Goods,  chattels,  money  and  effects,  wherever  they  are; 
ships  and  vessels  at  home  or  abroad,  except  as  provided  in  section 
eight  of  this  chapter  and  in  section  sixty-seven  of  chapter  sixty-three. 

Second,  Money  at  interest,  and  other  debts  due  the  person  to 
be  taxed  more  than  he  is  indebted  or  pays  interest  for;  but  not 
including  in  such  debts  due  him  or  indebtedness  from  him  any  loan 
on  mortgage  of  real  estate,  taxable  as  real  estate,  except  the  excess 
of  such  loan  above  the  assessed  value  of  the  mortgaged  real  estate. 

Third,  Public  stocks  and  securities,  bonds  of  railroads  and  street 
railways  and  stocks  in  turnpikes,  bridges  and  moneyed  corporations 
within  or  without  this  commonwealth. 

This  section  first  appeared  in  the  annual  tax  act  of  1777-8 r 
as  a  part  of  the  directions  to  the  assessors  to  be  included  in  the 
warrant  from  the  treasurer  of  the  state  and  was  continued  in 
the  periodic  tax  acts  until  the  Revised  Statutes  and  has  been 
repeated  in  the  subsequent  revisions  and  codifications  of  the  tax 
law  although  under  the  legislation  now  in  force  it  is  somewhat 
misleading. 

Thus  the  apparent  meaning  of  the  first  clause  is  of  course 
limited  by  the  inability  of  a  state  to  tax  property  not  within  its 
jurisdiction,  and  the  broad  phraseology  of  the  statute  must  be 
construed  in  connection  with  recent  decisions  and  legislation 
referred  to  elsewhere  so  as  not  to  include  tangible  property  per- 
manently located  in  another  state.2 

So  also  the  vitality  has  been  almost  entirely  removed  from 
the  second  and  third  clauses  by  the  enactment  of  the  income 
tax  and  the  almost  complete  removal  of  intangible  property 
from  the  sphere  of  local  taxation.3    It  is  believed  that  the  second 

i  St.  1777-8,  c.  13,  §  2. 

2  Supra,  Part  1,  §  43. 

3  G.  L.  c.  62,  infra  page  428.  Prior  to  the  enactment  of  the  income  tax  act 
it  was  held  that  under  clause  second  money  deposited  in  a  bank  but  at 
the  immediate  command  of  the  taxpayer  was  "money"  and  not  a  "debt  due," 
Gray  v.  Street  Commissioners  of  Boston,  138  Mass.  414  (1885) ;  that  not  every 
debt  was  taxable  to  some  one  as  there  might  be  a  considerable  balancing  of 
indebtedness,  Gray  v.  Boston,  15  Pick.  376  (1834) ;  that  a  claim  disputed  in 
toto  was  not  a  "debt,"  Lowell  v.  Street  Commissioners  of  Boston,  106  Mass. 
540  (1871) ;  Powers  v.  Worcester,  210  Mass.  471  (1912) ;  but  that  a  claim  disputed 
oijly  as  to  amount  was  a  "debt"  as  to  the  amount  admitted  to  be  due,  Deane 
v.  Hathaway,  136  Mass.  129  (1883) ;  that  money  at  interest  was  not  taxable 
unless  it  was  a  debt,  Williams  v.  Boston,  208  Mass.  497  (1911);  that  bonds 
secured  by  mortgage  of  real  estate  were  not  taxable  although  the  bond-holder 
did  not  himself  hold  the  mortgage,  Knight  v.  Boston,  159  Mass.  551  (1893) ; 
but  that  bonds  secured  by  mortgage  of  real  estate  in  part  outside  the  common- 


Assessment  of  Local  Taxes  193 

G.L.c.  59  §5] 

and  third  clauses  of  the  act  are  now  in  force  only  in  the  following 
respects:  (1)  These  clauses  are  material  in  governing  the  dis- 
tribution of  the  tax  on  national  bank  stock;4  (2)  If  an  owner 
of  intangible  property  of  the  classes  which  would  be  taxable 
under  these  clauses  but  for  the  income  tax  act  fails  to  include  the 
income  derived  therefrom  in  his  income  tax  return,  he  is  made 
liable  to  taxation  under  these  clauses;5  (3)  Intangible  prop- 
erty taxable  under  these  clauses,  so  far  as  it  is  in  the  form  of 
"securities"  is  treated  for  the  purposes  of  the  corporate  franchise 
tax  as  securities  which  if  owned  by  a  natural  person  resident  in 
this  commonwealth  would  be  liable  to  taxation.6 

Exemptions  from  Taxation 

GENERAL   PRINCIPLES   AND   THE   HISTORY   AND    DEVELOPMENT 

OF  THE  STATUTES 

The  exemption  of  any  property  from  taxation  results  in  in- 
creasing the  burden  of  taxation  upon  the  other  property  in  the 
same  taxing  district,  and  unless  an  exemption  can  be  justified  on 
some  rational  ground,  it  will  result  in  disproportionate  taxation. 
As  the  constitution  permits  only  proportional  taxation,  all  prop- 
erty within  the  commonwealth  which  is  owned  and  held  in  such 
a  way  that  it  ought  to  be  available  to  its  owner  to  increase  his 
ability  and  enlarge  his  duty  in  defraying  the  expenses  of  the 
government  must  be  subjected  by  law  to  the  annual  tax  levy. 
A  statute  exempting  property  from  taxation  is  unconstitutional 
unless  it  applies  only  to  property  already  taxed  in  some  other 


wealth,  or  in  part  secured  by  exempt  real  estate  were  taxable  for  their  full  value, 
Brooks  v.  West  Springfield,  193  Mass.  190  (1906);  Sweetser  v.  Manning,  200 
Mass.  378  (1909). 

Under  the  third  clause  it  was  held  that  bonds  issued  by  a  state  or  city 
to  aid  in  the  construction  of  a  public  work  by  a  private  corporation  were  "public 
stocks,"  Hall  v.  Middlesex  County  Commissioners,  10  Allen,  100  (1865),  but 
that  bonds  issued  by  a  public  service  corporation  were  not  "public  stocks," 
Hale  v.  Hampshire  County  Commissioners,  137  Mass.  Ill  (1884).  Shares  in 
an  unincorporated  association  though  transferable  like  shares  in  a  corpora- 
tion were  not  taxable  under  this  clause,  Hoadley  v.  Essex  County  Commis- 
sioners, 105  Mass.  519  (1870).  A  savings  bank  was  not  taxable  for  stock  in 
which  money  received  on  deposit  was  invested,  Worcester  County  Institution 
for  Savings  v.  Worcester,  10'Cush.  128  (1852).  Stocks  bought  by  a  stock- 
broker on  a  margin  for  customers  were  taxable  to  the  broker,  Chase  v.  Boston, 
180  Mass.  458  (1902). 

4  G.  L.  c.  63,  §  §  5-7  inc.,  infra  page  513. 

5  G.  L.  c.  62,  §  49,  infra  page  500. 

6  G.  L.  c.  63,  §  30,  infra  page  541. 


194  Taxation   in   Massachusetts 

[G.L.c.  59  §5 
way,  or  to  property  devoted  to  a  public  or  semi-public  use,  or 
to  property  of  insignificant  value  and  of  such  a  character  that 
it  may  be  supposed  to  be  owned  by  everyone  alike.1 

It  is  in  accordance  with  the  policy  of  our  law  that  all  the 
property  of  the  inhabitants  should  contribute  in  fair  and  just 
proportion  to  the  public  burdens.  To  this  rule  there  are  except 
tions  carefully  defined  by  statute;  but  the  burden  of  proof  is 
on  every  party  who  claims  exemption  from  taxation  to  show 
that  his  case  comes  within  some  one  of  these  exceptions.  Any 
doubt  arising  must  operate  most  strongly  against  the  person 
claiming  the  exemption.2  So  also  one  claiming  an  exemption 
must  come  into  court  with  clean  hands.  No  person  or  corpora- 
tion can  claim  an  exemption  upon  property  held  in  violation  of 
law  or  in  excess  of  the  authority  granted  to  him  or  it  by  the 
legislature.3 

Under  the  colonial  laws4  the  following  exemptions  were 
established:  (1)  Lands  lying  common  for  the  free  feed  of  cattle, 
to  the  use  of  the  inhabitants  in  general,  whether  belonging  to 
towns  or  particular  persons.  (2)  The  polls  of  magistrates  and 
elders  of  churches.     (3)  All  cattle  of  all  sorts  under  a  year  old. 

(4)  All  hay  and  corn  in  the  husbandman's  hand  "because  all 
meadow,  arable  ground  and  cattle  are  ratable  as  aforesaid." 

(5)  The  polls  of  "such  persons  as  are  disabled  by  sickness,  lame- 
ness or  other  infirmity."  (6)  Estates  of  land  in  England.  (7) 
The  estates  of  ordained  ministers  "provided  this  freedom  shall 
extend  only  to  such  estate  as  is  their  own  proper  estates,  and 
under  their  own  custody  and  improvement." 

Under  the  annual  tax  acts  of  the  provincial  period  the  gov- 
ernor, lieutenant-governor  and  their  families,  the  president,  fel- 
lows and  students  of  Harvard  College,  settled  ministers  and 
grammar-school  masters  were  exempted  from  being  taxed  for 

1  Opinions  of  the  Justices,  195  Mass.  607  (1908),  and  see  supra,  Part  I, 
§53. 

2  Redemptorist  Fathers  v.  Boston,  129  Mass.  178  (1880) ;  Third  Congrega- 
tional Society  v.  Springfield,  147  Mass.  396  (1888);  Milford  v.  Worcester 
County  Commissioners,  213  Mass.  162  (1912);  Boston  Lodge  of  Elks  v.  Boston. 
217  Mass.  176  (1914);  Sullivan  v.  Ashfield,  227  Mass.  24  (1917).  See  how- 
ever Masonic  Education,  etc.,  Trust  v.  Boston,  201  Mass.  320,  326  (1909). 

3  Evangelical  Baptist,  etc.,  Society  v.  Boston,  204  Mass.  28  (1910).  See 
however  Rural  Cemetery  v.  Worcester  County  Commissioners,  152  Mass.  408 
(1890),  infra  page  206. 

*  Anc.  Chart.,  pp.  69-73 


Assessment  of  Local  Taxes  195 

G.  L.  c.  59,  §  5] 

their  polls  and  for  their  estates  in  their  own  hands  and  under 
their  actual  management  and  improvement;  and  other  persons 
who  through  age,  infirmity  or  extreme  poverty  were  not  in  the 
judgment  of  the  assessors  capable  to  pay  towards  the  public 
charges  might  be  exempted  from  the  tax  on  their  polls 
and  so  much  of  their  estates  as  the  assessors  saw  fit.  In 
addition  to  these  exemptions  the  few  charitable  and  edu- 
cational corporations  which  existed  in  the  province  had 
been  granted  certain  exemptions  in  their  respective  charters, 
and  it  had  been  the  uniform  practice  to  exempt  without  special 
authority  churches,  schoolhouses,  turnpikes  and  other  property 
devoted  to  the  public  use.5 

Machinery  in  cotton  and  woollen  manufactories  was  ex- 
empted from  taxation  in  1818,  and  a  like  exemption  was  granted  to 
the  owners  of  sheep.6  These  exemptions  were  established  for 
the  purpose  of  encouraging  cotton  and  woollen  manufacture  and 
constituted  a  violation  of  the  requirement  of  proportional  tax- 
ation in  the  constitution  of  Massachusetts.  No  one  seems  to 
have  taken  it  upon  himself  to  challenge  the  validity  of  an  assess- 
ment which  was  based  upon  the  statutes  authorizing  such  exemp- 
tions, but  in  1828  the  exemption  was  repealed  by  the  legislature  7 
and  at  the  same  time  professors  and  students  of  the  various 
colleges,  ministers  of  the  gospel  and  masters  of  schools  and  acad- 
emies were  required  to  be  assessed  upon  their  polls  and  estates 
"in  the  same  manner  as  the  other  citizens  of  this  common- 
wealth." 

In  the  tax  acts  of  the  early  years  of  the  last  century  it  was 
provided  "that  all  persons  who  have  the  management  of  the 
estates  of  Harvard,  Williams  and  Bowdoin  colleges  respectively 
shall  not  be  assessed  for  the  same."  8  In  1821  first  appeared 
the  express  exemption  of  houses  of  religious  worship  and  the 
exemption  in  much  its  present  form  of  young  cattle,  household 
furniture,  wearing  apparel,  farming  utensils  and  the  necessary 
tools  of  mechanics.9  In  the  tax  act  of  1830  the  estates  of  Har- 
vard,  Williams   and   Amherst   colleges,   the   academies   estab- 

5  Infra  pages  217,  218. 
e  St.  1818,  c.  147. 

7  St.  1828,  c.  143. 

8  See  Harvard  College  v.  Kettell,  16  Mass.  204  (1819). 
«  St.  1821,  c.  107. 


196  Taxation   in    Massachusetts 

[G.L.c.  59  §5,  CI.  1,2 

lished  by  law,  the  Massachusetts  General  Hospital,  the  Berkshire 
Medical  Institution  and  the  Boston  Athenaeum  were  exempted.10 
In  the  Revised  Statutes  of  1836  the  exemption  of  literary,  be- 
nevolent, charitable  and  scientific  institutions  was  put  into 
general  form,  the  exemption  of  property  of  the  United  States 
and  of  the  commonwealth  was  recognized,  and  the  other  ex- 
emptions (consisting  principally  of  household  furniture,  clothes, 
tools,  young  cattle  and  the  estates  of  persons  unable  to  pay, 
houses  of  religious  worship  and  tombs  and  rights  of  burial)  were 
continued.11  The  development  of  the  exemption  laws  since  the 
enactment  of  the  Revised  Statutes  is  discussed  in  detail  in  the 
following  pages. 

Exemptions  Continued.  —  Property  of  the  United  States 
and  of  the  Commonwealth 

Section  5.  The  following  property  and  polls  shall  be  exempt 
from  taxation: 

First,     Property  of  the  United  States. 

Second  (as  amended  by  St.  1921,  chap.  389).  Property  of  the 
commonwealth,  except  real  estate  of  which  the  commonwealth  is  in 
possession  under  a  mortgage  for  condition  broken,  lands  in  Boston 
known  as  the  commonwealth  flats,  if  leased  for  business  purposes, 
lands  and  flats  lying  below  high  water  mark  in  Provincetown  harbor, 
belonging  to  the  commonwealth  of  Massachusetts  and  occupied  by 
private  persons  by  license  of  the  division  of  water  ways  and  public  lands 
of  the  department  of  public  works,  together  with  all  wharves,  piers  and 
other  structures  which  have  been  built  thereon  subsequent  to  the  twenty- 
second  day  of  May,  nineteen  hundred  and  twenty,  and  those  which 
may  hereafter  be  built  on  said  lands  and  flats,  in  conformity  with 
permits  or  licenses  granted  therefor  by  said  division,  which  shall  be 
taxed  to  the  persons  holding  such  permits  or  licenses,  buildings 
erected  by  lessees  under  section  twenty-six  of  chapter  seventy  five, 
and  property  taxable  under  chapter  five  hundred  and  seventy  five 
of  the  acts  of  nineteen  hundred  and  twenty. 

The  exemption  from  taxation  under  authority  of  the  state 
of  property  of  the  United  States  is  of  course  merely  a  necessary 
recognition  of  the  limits  of  the  state's  constitutional  power.  The 

10  St    1830,  c.  151,  §  6. 

11  R.  S.  c.  7,  §5. 


Assessment  of  Local  Taxes  197 

G.  L.  c.  59,  §  5,  CI.  3] 

principles  which  require  the  exemption  from  state  taxation  not 
only  of  the  property  of  the  United  States  but  of  its  agencies 
and  instrumentalities  as  well,  are  discussed  in  another  portion 
of  this  work.1 

The  exemption  of  the  property  of  the  commonwealth  from 
taxation  applies  to  property  from  which  revenue  is  derived 
as  well  as  to  property  held  for  governmental  purposes,2  unless 
the  property  is  within  the  exact  terms  of  the  exception  to  the 
exemption.3  The  tax  upon  land  leased  for  building  purposes 
under  the  foregoing  statute  is  upon  the  land  itself  and  not 
merely  upon  the  leasehold  interest,  although  the  lien  is  upon 
the  leasehold  interest  only.4 

The  last  two  stated  exceptions  to  the  exception  from  the 
exemption  contained  in  clause  second  refer  to  fraternity  houses 
on  the  grounds  of  the  Massachusetts  Agricultural  College,  and 
to  structures  on  the  reservation  of  the  Metropolitan  District 
Commission  at  Nantasket. 

Exemptions  Continued.  —  Literary  and  Charitable 

Institutions 

Third,  Personal  property  of  literary,  benevolent,  charitable  and 
scientific  institutions  and  of  temperance  societies  incorporated  in  the 
commonwealth,  the  real  estate  owned  and  occupied  by  them  or  their 
officers  for  the  purposes  for  which  they  are  incorporated,  and  real 
estate  purchased  by  them  with  the  purpose  of  removal  thereto,  until 
such  removal,  but  not  for  more  than  two  years  after  such  purchase, 
except  as  follows: 

(a)  If  any  of  the  income  or  profits  of  the  business  of  the  insti- 
tution or  corporation  is  divided  among  the  stockholders  or  members, 
or  is  used  or  appropriated  for  other  than  literary,  educational,  benev- 
olent, charitable,  scientific  or  religious  purposes,  its  property  shall 
not  be  exempt. 

(b)  A  corporation  coming  within  the  foregoing  description  shall 
not  be  exempt  for  any  year  in  which  it  wilfully  omits  to  bring  in  to 

1  Supra,  Part  1,  §§26-30  inc. 

2  Corcoran  v.  Boston,  185  Mass.  325   (1904). 

3  Thus  a  person  who  occupies  part  of  the  commonwealth  flats  for  business 
purposes  under  a  bond  for  a  deed  on  which  he  has  paid  all  but  the  last 
instalment  is  not  exempt  with  respect  to  such  property,  Corcoran  v.  Boston, 
193  Mass.  586  (1907) ;  and  a  lessee  who  does  not  use  the  premises  for  business 
purposes  but  sublets  them  for  business  purposes  is  not  exempt,  Boston  Fish 
Market  Corporation  v.  Boston,  224  Mass.  31   (1916). 

*  Boston  Molasses  Co.  v.  Commonwealth,  193  Mass.  387  (1907). 


198  Taxation   in   Massachusetts 

[G.L.c.  59  §5,  CI.  3 
the  assessors  the  list  and  statement  required  by  section  twenty-nine. 

(c)  Real  or  personal  property  of  such  an  institution  or  cor- 
poration, occupied  or  used  wholly  or  partly  as  or  for  an  insane  asylum, 
insane  hospital,  or  institution  for  the  insane  or  for  the  treatment  of 
mental  or  nervous  diseases,  shall  not  be  exempt  unless  at  least  one 
fourth  of  all  property  so  occupied  or  used,  wholly  or  partly,  on  the 
basis  of  valuation  thereof,  and  one  fourth  of  the  income  of  all  trust 
and  other  funds  and  property  held  for  the  benefit  of  such  asylum, 
hospital  or  institution  and  not  actually  occupied  or  used  by  it  for 
such  purposes,  is  used  and  expended  entirely  for  the  treatment,  board, 
lodging  or  other  direct  benefit  of  indigent  insane  persons,  or  indigent 
persons  in  need  of  treatment  for  mental  diseases,  as  resident  patients, 
without  any  charge  therefor  to  such  persons  either  directly  or  indi- 
rectly. 

(d)  Real  estate  acquired  after  May  fourth,  nineteen  hundred 
and  eleven,  by  any  association  or  private  corporation  formed  or  in- 
corporated for  the  care  of  the  insane,  shall  not  be  exempt  under  the 
preceding  paragraph  unless  the  city  council  of  the  city,  or  the  inhab- 
itants of  the  town,  in  which  it  is  situated,  have  by  vote  lawfully  taken 
consented  to  the  acquisition  of  such  real  estate,  to  be  so  exempt. 

Benevolent  or  charitable  institutions  within  the  meaning  of 
this  statute  are  such  as  come  within  the  provisions  of  the  stat- 
ute of  charitable  uses 1  and  such  as  are  organized  in  aid  of  the 
general  welfare  as  an  outgrowth  of  the  conditions  of  modern 
society  and  are  within  the  intent  and  spirit  of  the  statute.2  A 
benevolent  or  charitable  institution  may  be  defined  as  an  insti- 
tution established  consistently  with  existing  laws,  for  the  bene- 
fit of  an  indefinite  number  of  persons,  either  by  bringing  their 
minds  or  hearts  under  the  influence  of  education  or  religion,  by 
relieving  their  bodies  from  disease,  suffering  or  constraint,  by 
assisting  them  to  establish  themselves  in  life,  or  by  erecting 
or  maintaining  public  buildings  or  works,  or  otherwise  lessening 

1  The  statute  of  charitable  uses  is  an  English  statute  enacted  in  the  reign 
of  Queen  Elizabeth  (St.  43  Eliz.  c.  4)  which  enumerates  the  different  classes 
of  lawful  public  charities,  and  is  regarded  as  the  foundation  of  our  law  of 
charities,  although  it  is  well  settled  that  any  purpose  is  charitable  in  the  legal 
sense  of  the  word  which  is  within  the  principle  and  reason  of  the  statute, 
although  not  expressly  named  in  it.  The  statute  itself  and  the  objects  which 
have  been  upheld  as  charities  are  set  forth  in  Jackson  v.  Phillips,  14  Allen  539, 
551   (1867). 

2  Massachusetts  Society  for  the  Prevention  of  Cruelty  to  Animals  v.  Boston, 
142  Mass.  24  (1886). 


Assessment  of  Local  Taxes  199 

G.L.c.  59,  §5,  CI.  3] 

the  burdens  of  government.3  A  society  acting  for  the  mutual 
benefit  of  its  own  members  is  not  entitled  to  exemption,4  but 
an  organization  the  object  of  which  is  charitable  and  the  num- 
ber to  be  benefited  by  which  is  indefinite  is  within  the  exemption 
even  if  the  gift  is  limited  to  a  class.5 

A  literary  or  scientific  institution  within  the  meaning  of 
the  statute  is  one  that  disseminates  knowledge  to  the  public  or 
to  its  own  pupils  as  its  principal  object  and  an  institution  es- 
tablished primarily  to  provide  a  dwelling  place  for  its  members 
is  not  exempt  even  if  {he  members  are  engaged  in  study.6 

The  real  estate  of  a  corporation  such  as  is  described  in  this 
clause  of  the  statute  to  be  exempt  from  taxation  must  be  both 
owned  by  the  corporation  and  occupied  by  the  corporation  or  its 
officers.  Land  occupied  by  such  a  corporation  but  owned  by 
another,7  or  owned  by  the  corporation  and  occupied  by  another,8 
even  though  used  for  charitable  purposes,  is  not  exempt.   Land 

3  Jackson  v.  Phillips,  14  Allen  539,  556  (1867).  Institutions  which  have 
been  held  entitled  to  exemption  as  charitable  include  a  society  maintaining  a 
building  used  for  sheltering  and  caring  for  abused  and  diseased  animals, 
Massachusetts  Society  for  the  Prevention  of  Cruelty  to  Animals  v.  Boston, 
142  Mass.  24  (1886) ;  a  society  maintaining  a  home  for  working  girls  at  moderate 
cost,  Franklin  Square  House  v.  Boston,  188  Mass.  409  (1905);  a  society  main- 
taining a  building  as  a  memorial  to  soldiers  of  the  Revolution,  Molly  Varnum 
Chapter,  D.  A.  R.  v.  Lowell,  204  Mass.  487  (1910) ;  a  corporation  maintaining 
a  hospital  at  which  patients  unable  to  pay  were  cared  for  free  of  charge,  New 
England  Sanitarium  v.  Stoneham,  205  Mass.  335  (1910);  a  Young  Men's  Chris- 
tian Association,  Little  v.  Newburyport,  210  Mass.  414  (1912).  The  building 
of  a  lodge  used  primarily  for  social  and  festive  purposes  is  not  exempt,  al- 
though many  charitable  functions  are  also  performed  by  the  lodge,  Boston 
Lodge  of  Elks  v.  Boston,  217  Mass.  176  (1914). 

Corporations  which  are  given  a  special  and  limited  exemption  by  other 
clauses  of  this  section  of  the  General  Laws  are  not  entitled  to  an  exemption 
under  clause  third,  even  if  they  are  benevolent  or  charitable  institutions  in 
the  broad  sense.  Trustees  of  the  Greene  Foundation  v.  Boston,  12  Cush.  54 
(1853);   Milford  v.  Worcester  County  Commissioners,  213  Mass.  162   (1913). 

4  Young  Men's  Protestant  etc.  Society  v.  Fall  River,  160  Mass.  409  (1894). 
A    charitable    corporation    does    not   lose    its   exemption   by    confining    its 

benefits  to  its  own  members  if  anyone  can  become  a  member  on  payment  of 
a  moderate  fee.    Little  v.  Newburyport,  210  Mass.  414  (1912).      , 

5  Masonic  Education  &  Charity  Trust  v.  Boston,  201    Mass.  320   (1909). 

6  New  England  Theosophical  Corporation  v.  Boston,  172  Mass.  60  (1898); 
Phi  Beta  Epsilon  Corporation  v.  Boston,  182  Mass.  457  (1903). 

7  Bates  v.  Sharon,  175  Mass.  293  (1900). 

8  Thus  if  one  charitable  institution  allows  its  real  estate  to  be  used  free 
of  charge  by  another  charitable  institution  the  property  is  taxable.  St.  James 
Educational  Institute  v.  Salem,  153  Mass.  185   (1891). 

Model  apartment  houses  leased  by  a  charitable  institution  to  tenants  for  a 
small  rent  are  not  exempt,  because  not  occupied  by  the  institution.  Chapel 
of  the  Good  Shepherd  v.  Boston,  120  Mass.  212  (1876);  Charlesbank  Homes 
v.  Boston,  218  Mass.  14  (1914).  This  principle  doe?  not  apply  to  a  college 
dormitory  or  to  a  building  used  as  a  home  for  girls,  although  the  occupants 


200  Taxation   in    Massachusetts 

[G.  L.  c.  59  §  5,  CI.  3 

leased  for  profit  or  held  for  sale  by  a  charitable  institution  is  not 
exempt  even  if  the  proceeds  are  used  for  charitable  purposes,9  but 
the  payment  of  rent  by  an  officer  of  the  corporation  to  the  cor- 
poration for  the  occupation  of  a  parcel  of  its  land  by  him  is 
not  conclusive  against  the  exemption  of  such  land.  If  the 
dominant  purpose  of  his  occupation  is  to  aid  in  the  objects 
of  the  institution  the  land  is  exempt  whether  he  pays  rent  or 
not,10  and  the  rule  is  the  same  of  any  other  occupation  of  the 
land  whether  profitable  or  not.  An  occupation  the  dominant 
purpose  of  which  is  to  accomplish  some  one  of  the  objects  for 
which  the  corporation  was  established  is  within  the  exemption.11 
When  a  building  owned  by  a  corporation  of  the  exempted  class 
is  occupied  in  part  by  the  corporation  and  in  part  leased  for 
profit  it  is  proper  to  tax  only  the  leased  portion  and  a  propor- 


of  the  rooms  in  the  building  pay  rent,  Franklin  Square  House  v.  Boston,  188 
Mass.  409   (1905). 

9  Salem  Lyceum  v.  Salem,  154  Mass.  15  (1891)  (hall  leased  for  lectures); 
Lynn  Workingmen's  Aid  Association  v.  Lynn,  136  Mass.  283  (1884)  (land  be- 
ing sold  on  instalments  to  worthy  working  people). 

10  Thus  dwelling  houses  belonging  to  a  college  or  academy  and  situated  on 
or  near  the  college  or  academy  grounds  and  occupied  by  the  officers  or  instruc- 
tors of  the  college  or  academy  are  exempt  whether  the  occupants  pay  rent  or  not, 
if  the  proximity  of  the  officers  and  professors  and  their  families  is  advantageous 
in  promoting  discipline  and  freer  relations  with  the  students  and  this  advantage 
is  the  principal  object  of  their  occupying  the  houses.  Phillips  Academy  v. 
Andover,  175  Mass.  118  (1900);  Harvard  College  v.  Assessors  of  Cambridge, 
175  Mass.  145  (1900) ;  Amherst  College  v.  Assessors  of  Amherst,  193  Mass.  168 
(1906);  Thayer  Academy  v.  Assessors  of  Braintree,  232  Mass.  402  (1919). 

The  same  is  true  of  a  building  occupied  by  a  janitor  or  person  having 
charge  of  the  care  of  the  grounds  whose  living  on  the  premises  may  be  ad- 
vantageous. Massachusetts  General  Hospital  v.  Somerville,  101  Mass.  319 
(1869);  Wheaton  College  v.  Norton,  232  Mass.  141  (1919);  Thayer  Academy 
v.    Assessors   of   Braintree,    232    Mass.   402    (1919). 

When  however  dwelling  homes  belonging  to  a  college  are  occupied  by 
professors  primarily  for  the  benefit  and  convenience  of  the  professors,  the  houses 
are  taxable.  Pierce  v.  Cambridge,  2  Cush.  611  (1849);  Williams  College  v. 
Williamstown,  167  Mass.  505  (1897);  Amherst  College  v.  Assessors  of  Amherst, 
173  Mass.  232  (1899). 

11  With  respect  to  educational  institutions  it  has  been  held  that  the  follow- 
ing classes  of  property  owned  by  the  institution  are  exempt:  a  farm  on  which 
the  students  work,  the  products  being  consumed  by  the  students  so  far  as 
required  and  the  rest  sold,  Wesleyan  Academy  v.  Wilbraham,  99  Mass.  599 
(1868);  Mt.  Hermon  Boys'  School  v.  Gill,  145  Mass.  139  (1887);  a  building  used 
by  an  association  of  students  to  obtain  food  at  cost,  Harvard  College  v. 
Assessors  of  Cambridge,  175  Mass.  145  (1900);  athletic  fields,  playgrounds 
and  woodland  to  be  used  by  the  students  for  exercise  and  recreation,  Emerson 
v.  Milton  Academy,  185  Mass.  414  (1904) ;  Amherst  College  v.  Assessors  of 
Amherst,  193  Mass.  168  (1906);  Wheaton  College  v.  Norton,  232  Mass.  141 
(1919).  A  parcel  of  land  purchased  by  a  college  to  prevent  its  acquisition  by 
undesirable  neighbors  is  not  exempt,  Wheaton  College  v.  Norton,  232  Mass. 
141  (1919). 


Assessment  of  Local  Taxes  201 

G.L.c.  59,  §5,  CI.  3] 

tionate  part  of  the  land  covered  by  the  building.12 

Land  which  an  educational  institution  has  acquired  with  the 
intent  to  use  for  additional  buildings  in  the  future  is  not  exempt, 
unless  it  is  proceeding  diligently  to  erect  a  building  thereon  at 
once.13  The  "purpose  of  removal"  referred  to  in  the  statute 
means  the  removal  of  the  whole  institution,  not  the  use  of 
additional  land.14  So  also  a  building  belonging  to  a  charitable 
institution  and  used  for  charitable  purposes  does  not  continue 
to  be  exempt  after  such  use  has  ceased.  15 

When  property  is  held  in  trust,  the  court  will  consider  the 
equitable  and  not  the  legal  title  in  passing  upon  the  question 
of  exemption.  A  charitable  corporation  holding  property  merely 
as  trustee  for  purposes  which  of  themselves  do  not  exempt  the 
property  from  taxation  stands  no  better  than  an  individual 
trustee;  for  this  property  is  not  its  property  in  the  sense  con- 
templated by  the  statute;16  but  property  held  in  trust  by  indi- 
viduals for  a  corporation  of  the  exempt  class  to  be  used  for  the 
purposes  for  which  the  corporation  was  established  is  itself 
exempt.17  This  principle  however  does  not  extend  so  far  as  to 
authorize  the  taxation  of  the  equitable  interest  of  persons  who 
have  contracted  to  buy  the  land  of  an  exempt  corporation  and 
have  made  a  partial  payment  of  the  purchase  price.18  Personal 
property  held  as  an  accumulating  fund  which  the  statutes  now 
require  to  be  taxed  to  the  trustee19  is  not  so  taxable  if  the 
property  of  the  beneficiary  is  exempt  under  the  statute  now 
under  consideration.20 

With  respect  to  the  exceptions  to  the  exemption  contained 
in  paragraphs  (a),  (b),  (c)  and  (d),  it  has  been  held  that 
an  exception  from  an  exemption  is  not  unconstitutional  if 
it  rests  upon  a  rational  classification,  although  it  excludes  a 
very  few  institutions  from  a  privilege  which   others  enjoy.21 

12  Cambridge  v.  Middlesex  County  Commissioners,  114  Mass.  337   (1874). 

13  As  to  the  latter  situation  see  New  England  Hospital  for  Women  and 
Children  v.  Boston,  113  Mass.  518  (1873)  decided  before  the  statute  specifically 
exempted  property  acquired  for  purposes  of  removal. 

14  Wheaton   College   v.    Norton,   232    Mass.    141    (1919). 

15  Babcock  v.  Leopold  Morse  Home,  225  Mass.  418  (1917). 

16  Salem  Marine  Society  v.  Salem,  155  Mass.  329    (1892). 

17  Watson  v.  Boston,  209  Mass.  18  (1911);  Little  v.  Newburyport,  210 
Mass.  414  (1911). 

18  Williams  v.  Boston,  208  Mass  497  (1911). 

19  G.  L.  c.  59,  §  18,  infra  page  237. 

20  Williston  Seminary  v.  Hampshire  County  Commissioners,  147  Mass.  427 
(1888).       21  Massachusetts  General  Hospital  v.  Belmont,  233  Mass.  190  (1919). 


202  Taxation   in   Massachusetts 

.    [G.  L.  c.  59  §  5,  CI.  3 

The  exception  contained  in  paragraph  (a)  is  one  of  obvious 
propriety  and  has  never  been  considered  by  the  court.  The 
exception  in  paragraph  (b)  is  not  applied  unless  it  is  shown 
that  the  failure  to  file  a  list  was  wilful;22  and  the  failure  is  not 
wilful  if  the  corporation  had  reason  to  suppose  from  the  previous 
action  of  the  assessors  that  a  list  was  not  required.23  So  also 
if  a  list  is  actually  filed,  which  is  insufficient  both  in  substance 
and  form,  the  right  to  exemption  is  not  lost,  if  no  wilful  omission 
appears.24 

The  exceptions  contained  in  paragraphs  (c)  and  (d)  ap- 
pear to  have  arisen  from  a  decision  in  1910  that  a  sanitarium 
which  contained  both  free  and  paying  patients  was  exempt  al- 
though the  paying  patients  largely  predominated.25  In  1911  it 
was  provided  that  no  property  thereafter  acquired  for  an  insane 
hospital  should  be  exempt 26  and  in  1914  that  no  hospital  for  the 
care  of  mental  diseases  should  be  exempt  unless  one  fourth  of 
the  hospital  was  used  for  free  patients.27  It  was  held  that  .the 
last  named  statute  was  constitutional,28  that  it  applied  to  an 
institution  caring  for  persons  who  though  not  insane  required 
building  up  of  the  nervous  system;29  and  that  it  did  not  require 
a  physical  line  of  demarcation  between  the  portions  of  the  hos- 
pital devoted  to  free  and  to  paying  patients  or  a  fractional  use 
of  the  property  based  on  the  number  of  patients,  but  that  it 
signified  that,  on  a  fair  basis  of  computation,  having  reference 
both  to  numbers  of  patients,  so  far  as  property  is  used  in 
common  by  both  classes,  and  to  definite  property,  so  far  as  there 
is  a  strict  separation  between  the  use  by  the  two  classes,  one 
fourth  in  value  should  be  employed  for  free  patients.30 

22  Wheaton  College  v.  Norton,  232  Mass.  141    (1919). 

23  Masonic  Education  &  Charity  Trust  v.  Boston,  201  Mass.  320  (1909); 
Wheaton  College  v.  Norton,  232  Mass.  141   (1919). 

24  Thayer  Academy  v.  Assessors  of  Braintree,  232  Mass.  402  (1919). 

25  New  England  Sanitarium  v.  Stoneham,  205  Mass.  335   (1910). 

26  St.  1911,  c.  400,  §  1,  now  G.  L.  c.  59,  §  5,  cl.  3,  par.  (d). 

27  St.  1914,  c.  518,  now  G.  L.  c.  59.  §5,  cl.  3,  par.   (c). 

28  Massachusetts  General  Hospital  v.  Belmont,  233  Mass.  190   (1919). 

29  New  England  Sanitarium  v.  Stoneham,  233  Mass.  171  (1919). 

30  Massachusetts  General  Hospital  v.  Belmont,  233  Mass.  190  (1919). 


Assessment  of  Local  Taxes  203 

G.L.c.  59,  §5,  CI.  4, 5, 6] 

Exemptions  Continued.  —  Agricultural  and  Horticultural 

Societies 

Fourth,  Real '  and  personal  estate  of  incorporated  agricultural 
societies  and  the  portions  of  real  estate  and  buildings  of  incorporated 
horticultural  societies  used  for  their  offices,  libraries  and  exhibitions. 

Although  the  exemption  of  agricultural  societies  is  much 
broader  than  that  of  horticultural  societies,  it  has  never  been 
suggested  that  there  was  unconstitutional  discrimination  or  pref- 
erence.1 The  exemption  of  agricultural  societies  under  this 
clause  applies  only  to  general  taxation,  and  does  not  extend  to 
special  assessments  for  local  improvements.2 

Exemptions  Continued.  —  Associations  of  Veterans 

Fifth  (as  amended  by  St.  1921,  chap.  474).  The  real  and  personal 
estate  belonging  to  incorporated  organizations  of  veterans  of  any  war 
in  which  the  United  States  has  been  engaged,  to  the  extent  of  one 
hundred  thousand  dollars,  if  actually  used  and  occupied  by  such 
association,  and  if  the  net  income  from  said  property  is  used  for 
charitable  purposes;  but  it  shall  not  be  exempt  for  any  year  in  which 
such  association  wilfully  omits  to  bring  in  to  the  assessors  the  list 
and  statement  required  by  section  twenty-nine. 

This  exemption  was  established  in  1882,1  but  it  then  applied 
only  to  posts  of  the  Grand  Army  of  the  Republic.  In  1920  it 
was  extended  to  include  associations  of  veterans  of  other  wars,2 
and  in  1921  the  exemption  was  increased  so  as  to  extend  to 
property  of  one  hundred  thousand  dollars  in  value. 

Exemptions  Continued.  —  Militia  Units 

Sixth,  Real  estate  owned  by  or  held  in  trust  for  a  regiment, 
corps,  company  or  other  organized  unit  of  the  volunteer  militia  and 
used  exclusively  for  military  purposes,  and  tangible  personal  prop- 
erty owned  by  such  an  organized  unit  of  the  volunteer  militia  and 
used  by  it  or  its  members  exclusively  for  military  purposes,  for  any 

1  Massachusetts  General  Hospital  v.  Belmont,  233  Mass.  190,  202  (1919). 

2  Worcester  Agricultural  Society  v.  Worcester,  116  Mass.  189  (1874)  and  see 
infra  page  675. 

1  St.  1882,  c.  217,  §2. 

2  St.  1920,  c.  175. 


204  Taxation   in   Massachusetts 

[G.L.c.  59  §5,  CI.  7, 8, 9 
year  in  which  the  trustee  or  a  competent  officer  of  the  organization 
owning  such  property  brings  in  to  the  assessors  the  list  and  statement 

required  by  section  twenty-nine. 

• 

The  exemption  of  the  property  of  militia  units  was  first 
established  by  statute  in  19 15.1 

Exemptions  Continued.  —  Fraternal  Orders 

Seventh,  Personal  property 'of  a  fraternal  society,  order  or  asso- 
ciation, operating  under  the  lodge  system  or  for  the  exclusive  benefit 
of  the  members  of  a  fraternity  itself  operating  under  the  lodge  system, 
and  providing  life,  sick,  accident  or  other  benefits  for  the  members 
of  such  society,  order  or  association,  or  their  dependents. 

In  1894  it  was  held  that  a  mutual  relief  or  benefit  society 
was  not  exempt  under  the  general  provisions  of  law  relating  to 
charitable  and  benevolent  institutions,1  but  in  1911  exemption 
from  taxation  on  personal  property  was  granted  to  fraternal 
beneficiary  societies  licensed  in  accordance  with  law  2  and  in  1917 
the  statute  was  put  into  its  present  form.3 

Exemptions  Continued.  —  Retirement,  Annuity,  Pension 
or  Endowment  Associations 

Eighth,  Personal  property  of  any  retirement  association  exempted 
by  section  thirty-seven  of  chapter  thirty-two. 

Ninth,  Property  of  any  annuity,  pension  or  endowment  asso- 
ciation exempted  by  section  forty-one  of  said  chapter. 

These  exemptions  were  first  established  in  19 10.1  The  ex- 
emption granted  by  clause  eighth  applies  to  retirement  systems 
for  the  state,  counties  and  cities  and  towns  and  for  teachers 
in  the  public  schools.  The  exemption  granted  by  clause  ninth 
applies  to  associations  of  employees  of  any  private  employer. 
In  either  case  the  exemption  extends  to  the  portion  of  the  wages 
of  a  member  deducted  or  to  be  deducted,  the  right  of  a  member 

1  St.  1915.  c.  40. 

1  Young  Men's  Protestant  etc.  Society  v.  Fall  River,  160  Mass.  409  (1894). 

2  St.    1911,    c.    628,    §30. 

3  St.  1917,  c.  204. 

i  St.  1910,  cc.  559,  §3,  619,  §7;  St.  1911,  cc.  532,  §7,  634,  §7;  St.  1913,  c 
882,  §8. 


Assessment  op  Local  Taxes  205 

G.L.c.  59,  §5,  CI.  10, 11] 

to  an  annuity,  pension  or  endowment,  and  all  his  rights  in  the 
funds  of  the  association.  - 

Exemptions  Continued.  —  Churches  and  Religious 

Organizations 

Tenth,  Personal  property  owned  by  or  held  in  trust  within  the  com- 
monwealth for  religious  organizations,  whether  or  not  incorporated, 
if  the  principal  or  income  is  used  or  appropriated  for  religious,  be- 
nevolent or  charitable  purposes. 

Eleventh,  Houses  of  religious  worship  owned  by,  or  held  in 
trust  for  the  use  of,  any  religious  organization,  and  the  pews  and 
furniture;  but  the  exemption  shall  not  extend  to  portions  of  such 
houses  appropriated  for  purposes  other  than  religious  worship  or 
instruction. 

The  exemption  granted  by  clause  tenth  was  not  established 
until  1918  ;x  prior  to  then  it  had  been  held  that  the  property  of 
a  corporation  established  for  the  purpose  of  holding  a  fund  in 
trust  for  the  support  of  a  minister  was  taxable.2 

The  exemption  granted  by  clause  eleventh  dates  back  to 
early  times.  Not  every  corporation  which  conducts  or  is  inter- 
ested in  religious  services  is  however  a  religious  organization 
within  the  meaning  of  this  statute;  it  seems  to  be  strictly  con- 
fined to  churches  and  ecclesiastical  bodies  owning  houses  of 
religious  worship  and  using  and  occupying  them  as  such.3  The 
real  estate  of  a  religious  organization  other  than  a  house  of 
worship  is  taxable,  although  the  income  from  it  is  used  to  support 
religious  worship,4  or  it  is  occupied  by  the  minister  as  a  dwelling 
house  free  of  rent.5 

The  land  upon  which  a  church  stands  and  land  necessary 
or  incidental  to  the  use  of  the  church  as  a  place  of  public  worship 
is  exempt;  but  surrounding  land  not  reasonably  necessary  for 

1  St.  1918,  c.  106. 

2  Trustee  of  Ministerial  Fund  v.  Gloucester,  19  Pick.  542  (1837);  Trustees 
of   the   Greene   Foundation  v.  Boston,    12   Cush.   54    (1853). 

3  Salem  Marine  Society  v.  Salem,  155  Mass.  329  (1892) ;  Evangelical  Baptist 
etc.  Society  v.  Boston,  204  Mass.  28  (1910). 

4  South  Congregational  Meeting  House  v.  Lowell,  1  Met.  538  (1840)  (stores 
in  ground  floor  of  church) ;  First  Universalist  Society  v.  Salem,  185  Mass. 
310   (1904). 

5  Third  Congregational  Society  v.  Springfield.  147  Mass.  396  (1888);  First 
Universalist  Society  v.  Salem,  185  Mass.  310  (1904). 


206  Taxation   in   Massachusetts 

[G.L.c.  59  §5,  CI.  12. 13 

the  use  of  the  church  as  such  is  not  exempt.6  Land  which  has 
been  bought  for  church  purposes  is  exempt  only  if  the  work 
of  construction  has  been  begun  and  is  being  prosecuted  without 
unreasonable  delay.7  When  the  religious  use  has  been  perma- 
nently abandoned  the  exemption  is  lost.8 

Exemptions  Continued.  —  Cemeteries 

Twelfth,  Cemeteries,  tombs  and  rights  of  burial,  so  long  as 
dedicated  to  the  burial  of  the  dead. 

Thirteenth,  Personal  property  held  by  cities,  towns,  religious 
societies  and  cemeteries,  whether  incorporated  or  unincorporated,  or 
by  the  commonwealth  or  by  any  corporation,  for  the  perpetual  care 
of  graves,  cemetery  lots  and  cemeteries,  for  the  placing  of  flowers 
upon  graves,  for  the  care  or  renewal  of  gravestones,  monuments  or 
tombs,  and  for  the  care  and  maintenance  of  burial  chapels;  but  this 
exemption  shall  not  apply  to  any  such  personal  property  held  by  a 
cemetery  corporation  which  distributes  any  of  the  income  or  profits 
of  its  business  among  its  stockholders  or  members,  nor  shall  such 
property  be  exempt  for  any  year  in  which  the  holder  thereof,  other 
than  the  state  treasurer,  omits  to  bring  in  to  the  assessors  the  list 
and  statement  required  by  section  twenty-nine. 

The  statutory  exemption  of  cemeteries,  granted  by  clause 
twelfth,  dates  back  to  1841.1  To  justify  an  exemption  under 
this  statute  land  must  be  actually  and  lawfully  used  for  the 
burial  of  the  dead;  there  must  be  consent  of  the  municipal 
authorities  2  and  actual  dedication  by  the  owner.3 

It  has  been  held  that  land  irrevocably  dedicated  by  statute 
to  burial  purposes  and  exempted  by  special  statute  from  public 

6  Redemptorist  Fathers  v.  Boston,  129  Mass.  178  (1880);  All  Saints'  Parish 
v.  Brookline,  178  Mass.  404  (1901). 

7  Trinity  Church  v.  Boston,  118  Mass.  164  (1875);  All  Saints'  Parish  v. 
Brookline,  178  Mass.  404  (1901). 

s  Old  South  Society  v.  Boston,  127  Mass.  378  (1879). 
i  St.   1841,  c.   114,   §  7. 

2  Under  G.  L.  c.  114,  §34. 

3  Woodlawn  Cemetery  v.  Everett,  118  Mass.  354  (1875).  In  Rural  Cemetery 
v.  Worcester  County  Commissioners,  152  Mass.  408  (1890)  it  was  held  that 
when  a  cemetery  corporation  was  authorized  to  buy  and  hold  a  certain 
limited  amount  of  land  and  its  charter  provided  that  it  should  not  be  taxed 
for  such  land,  and  it  subsequently  bought  additional  land  for  buildings 
appurtenant  to  the  cemetery,  and  a  statute  enacted  later  authorized 
the  purchase  of  such  additional  land,  such  additional  land  was  not  taxable 
after  the  enactment  of  the  later  statute.  In  Sweetser  v.  Manning  200  Mass. 
378  (1909)  it  was  held  that  a  mortgage  on  a  cemetery  was  taxable  as  a  debt. 


Assessment  of  Local  Taxes  207 

G.L.c.  59,  §5,  CI.  14, 15] 

taxation  is  exempt  from  a  special  assessment  for  a  local  improve- 
ment which  can  confer  no  benefit  on  the  land  while  it  is  used 
for  cemetery  purposes;4  but  that  a  cemetery  belonging  to  a 
corporation  which  is  under  no  legal  obligation  to  maintain  it 
as  a  place  of  burial  is  not  exempt  from  a  special  assessment  for 
an  improvement  which  benefits  the  land  even  while  it  is  in 
use  as  a  cemetery.5 

In  1912  it  was  held  that  the  personal  property  of  a  cemetery 
corporation  was  not  exempt  from  taxation  under  the  laws  then 
in  force;6  and  in  the  following  year  the  statute  now  contained 
in  clause  thirteenth  was  enacted.7 

Exemptions  Continued.  —  Water  Companies 

Fourteenth,  Any  real  or  personal  property  of  a  water  company 
whose  charter  exempts  such  property  from  taxation,  but  not  of  any 
other  water  company  unless  exempted  by  clause  sixteenth. 

In  1906  it  was  held  that  the  real  estate  of  a  water  company 
was  exempt  from  taxation  even  in  the  absence  of  a  statute 
specifically  granting  an  exemption  to  companies  of  this  charac- 
ter,1 under  the  general  principle  that  the  general  tax  acts  do  not 
apply  to  property  appropriated  to  a  public  use.2  As  this  de- 
cision left  a  private  water  company  more  favorably  situated 
than  a  city  or  town  holding  land  for  its  water  supply  in  another 
municipality,  in  the  following  year  legislation  was  enacted  pro- 
viding for  the  taxation  of  water  companies.3 

Exemptions  Continued.  —  Credit  Unions 

Fifteenth,  Property  other  than  real  estate  owned  by  a  credit 
union  incorporated  under  chapter  one  hundred  and  seventy-one;  also 
the  capital  stock  thereof. 

This  exemption  was  first  granted  in  1915  when  the  statute 
authorizing  the  establishment  of  credit  unions  was  enacted.1 

4  Mount  Auburn  Cemetery  v.  Cambridge,  150  Mass,  12  (1889). 

5  Garden  Cemetery  Corporation  v.  Baker,  218  Mass.  339   (1914). 

6  Milford  v.  Worcester  County  Commissioners,  213   Mass.    162    (1912). 

7  St.  1913,  c.  578.    See  also  St.  1914,  c.  523. 

1  Milford  Water  Co.  v.  Hopkinton,  192  Mass.  491  (1906). 

2  Infra  pages  217,  218. 

3  St.  1907,  c.  329.  See  also  St.  1908,  c.  193. 
1  St.  1915,  c.  208,  §  1. 


208  Taxation   in   Massachusetts 

[G.L.c.  59,  §5,  CI.  16 

Exemptions  Continued.  —  Personal  Property  of 

Corporations 

Sixteenth  (as  amended  by  St.  1921,  chap.  486,  §  16).  Property, 
other  than  real  estate,  poles,  underground  conduits,  wires  and  pipes, 
and  other  than  machinery  used  in  manufacture  or  in  supplying  or 
distributing  water,  owned  by  Massachusetts  savings  banks  or  co- 
operative banks,  by  Massachusetts  corporations  subject  to  taxation 
under  chapter  sixty-three  or  by  foreign  corporations  subject  to  tax- 
ation under  section  thirty-nine  or  fifty-eight  of  said  chapter. 

The  exemption  contained  in  clause  sixteenth  is  granted  be- 
cause the  property  exempted  is  reached  indirectly  by  excise 
taxes  upon  the  corporations  owning  the  property,  the  amount 
of  the  excise  taxes  being  in  part  at  least  dependent  upon  the 
value  of  such  property,  so  that  if  the  same  property  were  subject 
to  the  general  property  tax  it  would  in  effect  be  taxed  twice.1 

It  is  interesting  to  note  that  the  exemption  from  local  tax- 
ation of  the  personal  property  of  domestic  business  corporations, 
other  than  machinery,  although  it  has  existed  since  1813,  was 
not  based  upon  any  express  provision  of  the  statutes  until  1919, 
but  rested  upon  judicial  construction  of  the  general  provisions 
of  the  tax  laws.  Since  the  personal  property  of  domestic  corpo- 
rations was  indirectly  reached  by  the  tax  upon  the  stock  in  the 
hands  of  the  individual  stockholders  and  the  statutes  did  not 
expressly  require  the  taxation  of  the  personal  property  of  cor- 
porations it  was  held  that  such  property  was  exempt;2  and  the 
same  construction  was  put  upon  the  statutes  after  the  tax  on 
the  shares  was  replaced  by  the  tax  upon  the  corporate  franchise.3 

Foreign  corporations  were  not  taxable  on  personal  property 
until  1893,4  except  with  respect-  to  the  classes  of  property  which 
when  held  by  individuals  were  taxed  where  situated  rather  than 
at  the  domicile  of  the  owner;5  and  in  1919,  when  foreign  cor- 
porations doing  business  in  Massachusetts  were  subjected  to  an 

1  Opinion  of  the  Justices,  195  Mass.  607,  611   (1908). 

2  Salem  Iron  Factory  v.  Danvers,  10  Mass.  514    (1813). 

3  Fall  River  v.  Bristol   County  Commissioners,  125   Mass.  567    (1878). 

*  Boston  Investment  Co.  v.  Boston,  158  Mass.  461  (1893);  Coffin  v. 
Artesian  Water  Co.,   193  Mass.  274   (1906). 

5  Blackstone  Manufacturing  Co.  v.  Blackstone,  13  Gray  488  (1859)  and  see 
G.  L.  c.  59,  §  18,  infra  page  237. 


Assessment  of  Local  Taxes  209 

G.  L.  c.  59,  §  5,  CI.  17] 

excise  tax,  and  their  personal  property  reached  indirectly,  such 
property  was  exempted  from  local  taxation.6 

Exemptions  Continued.  —  Women  and  Children 

Seventeenth,  Property,  to  the  amount  of  one  thousand  dollars, 
of  a  widow,  of  an  unmarried  woman  above  the  age  of  twenty-one, 
of  a  person  above  the  age  of  seventy-five,  or  of  any  minor  whose 
father  is  deceased,  who  are  legal  residents  of  the  commonwealth, 
whether  such  property  be  owned  by  such  persons  separately,  or 
jointly,  or  as  tenants  in  common;  provided,  that  the  whole  estate, 
real  and  personal,  of  such  person  does  not  exceed  in  value  the  sum 
of  one  thousand  dollars,  exclusive  of  property  otherwise  exempt 
under  this  section  and  exclusive  of  the  value  of  the  mortgage  interest 
held  by  persons  other  than  the  person  to  be  exempted  in  such  mort- 
gaged real  estate  as  may  be  included  in  such  whole  estate;  but  if, 
the  value  of  such  whole  estate  being  less  than  one  thousand  dollars,  the 
combined  value  thereof  and  of  such  mortgage  interest  exceeds  one 
thousand  dollars,  the  amount  so  exempted  shall  be  one  thousand 
dollars.  If  the  property  of  a  person  entitled  to  such  exemption  is 
taxable  in  more  than  one  town,  or  partly  without  the  commonwealth, 
only  such  proportion  of  the  one  thousand  dollars  exemption  shall 
be '  made  in  any  town  as  the  value  of  the  property  taxable  in 
such  town  bears  to  the  whole  of  the  taxable  property  of  such  person. 
No  property  shall  be  so  exempt  which  the  assessors  shall  adjudge 
has  been  conveyed  to  such  persons  to  evade  taxation.  A  person 
aggrieved  by  any  such  judgment  may  appeal  to  the  county  commis- 
sioners within  the  time  and  in  the  manner  allowed  by  section  sixty- 
four. 

This  exemption  has  been  in  force,  in  varying  forms,  since 
1358  and  is  justified  on  the  ground  that  the  persons  to  whom 
the  exemption  is  granted  are  less  able  to  bear  their  share  of  the 
burdens  of  government  than  the  remaining  classes  of  citizens. 
In  the  codification  of  the  General  Laws  an  unintentional  change 
was  made  in  the  meaning  of  this  clause  without  any  change  in 
its  phraseology,  by  adding  to  the  section  which  contains  the  ex- 
emptions clauses  relating  to  deposits  in  savings  banks,  shares  in 
domestic  corporations  and  to  property  subject  to  the  income  tax, 
which  had  previously  been  located  in  other  chapters  of  the 

6  St.  1919,  c.  355,  §  27. 


210  Taxation   in   Massachusetts 

[G.L.c.  59,  §5,  CI.  18,  19,  20 

laws.  The  effect  was  to  establish  an  exemption  for  a  woman  or 
minor  of  the  specified  classes  with  respect  to  tangible  property 
to  the  value  of  one  thousand  dollars,  if  such  person  owned  no 
other  such  property,  although  she  held  many  thousand  dollars 
invested  in  stocks  and  bonds  or  deposited  in  savings  banks, 
since  such  property  is  now  "otherwise  exempt  under  this  section." 

Exemptions  Continued.  —  The  Poor  and  Aged 

Eighteenth,  The  polls  and  any  portion  of  the  estates  of  persons 
who  by  reason  of  age,  infirmity  and  poverty  are  in  the  judgment  of 
the  assessors  unable  to  contribute  fully  toward  the  public  charges. 

If  a  tax  is  assessed  upon  a  person  such  as  described  in  this 
clause,  it  is  within  the  power  of  the  assessors  to  abate  it  of  their 
own  motion  as  a  tax  which  should  not  have  been  assessed.1 

Exemptions  Continued.  —  Tangible  Property  Situated 

in  other  States 

Nineteenth,  Merchandise,  machinery  and  animals  owned  by 
inhabitants  of  this  commonwealth  but  situated  in  another  state. 

This  class  of  property  was  nominally  subject  to  taxation  in 
Massachusetts  until  1909,  when,  in  consequence  of  a  decision 
of  the  supreme  court  of  the  United  States  that  a  state  had  no 
power  to  tax  tangible  personal  property  permanently  located 
in  another  state,1  the  statutes  were  modified  to  conform  to  the 
decision.2  The  statutory  provisions  now  in  force  would  be  more 
logically  arranged  if  this  class  of  property  was  not  included 
among  the  classes  of  property  subjected  to  taxation  instead  of, 
as  at  present,  being  subjected  to  taxation  in  one  section  and 
exempted  in  another. 

Exemptions  Continued.  —  Clothing,  Furniture  and  Tools 

Twentieth,  The  wearing  apparel  and  farming  utensils  of  every 
person;  his  household  furniture  used  in  the  dwelling  which  is  the  place 
of  his  domicile  not  exceeding  one  thousand  dollars  in  value;  and  the 
necessary  tools  of  a  mechanic  not  exceeding  three  hundred  dollars  in 
value. 

1  Gordon  v.  Sanderson,  165  Mass.  375  (1896). 

1  Supra,  Part  1,  §43. 

2  St.  1909,  c.  516,  §  1. 


Assessment  of  Local  Taxes  211 

G.L.c.  59,  §5,  CI.  21] 

The  exemption  granted  by  clause  twentieth  has  existed  since 
1821. x  It  is  one  of  those  exemptions  which  are  justified  on  the 
ground  that  they  apply  only  to  property  of  insignificant  value 
and  of  such  a  character  that  it  may  be  supposed  to  be  owned 
by  everyone  alike.2  The  exemption  of  household  furniture  was 
not  in  terms  limited  to  the  furniture  used  in  the  place  of  dom- 
icile of  the  taxpayer  until  19 18,3  although  it  was  previously 
considered  doubtful  if  a  non-resident  was  entitled  to  the  exemp- 
tion.4 

The  words  u  household  furniture  "  as  used  in  this  clause  mean 
all  furniture  appertaining  to  a  dwelling  house  and  bought  and 
kept  for  use  in  the  household,  and  the  fact  that  a  large  portion 
of  the  furniture  is  kept  in  sleeping  rooms  used  solely  by  occa- 
sional guests  or  permanent  boarders  does  not  take  it  out  of  the 
exemption.5  The  burden  of  proof  is  on  one  claiming  exemption 
under  this  clause  to  show  that  its  value  does  not  exceed  one 
thousand  dollars.6 

It  has  been  ruled  that  the  "  farming  utensils  "  which  are 
exempt  under  this  clause  are  confined  to  the  following:  all  hand 
tools  for  farming,  plow,  harrow,  cultivator,  planter,  mowing 
machine,  tedder,  horse  rake,  reaper,  potato  digger,  ensilage  cut- 
ter, spray  pump  and  tank,  churn,  wagon,  cart  or  sled  used  prin- 
cipally for  farm  purposes,  chains,  manure  spreader.7  A  lawn 
mower  is  not  a  "  farming  utensil."  8 

Exemptions  Continued.  —  Young  Animals  and  Fowls 

Twenty-first,  Mules,  horses,  and  neat  cattle  less  than  one  year 
old,  swine  and  sheep  less  than  six  months  old  and  domestic  fowls 
not  exceeding  fifteen  dollars  in  value. 

1  St.  1821,  c.  107,  §  2. 

2  Day  v.  Lawrence,  167  Mass.  371  (1897);  Opinion  of  the  Justices,  195 
Mass.  607  (1908). 

3  St.  1918,  c.  42. 

4  Sullivan  v.  Ashfield,  227  Mass.  24  (1917). 
8  Day  v.  Lawrence.  167  Mass.  371   (1897). 

■  Sullivan  v.  Ashfield,  227  Mass.  24  (1917). 

7  Op.  of  Atty.  Gen.  Sept.  28,  1906. 

8  Sullivan  v.  Ashfield,  227  Mass.  24  (1917).    . 


212  Taxation   in   Massachusetts 

[G.L.c.  59,  §5,  CI.  22 

Exemptions  Continued.  —  Certain  Veterans  of  the  Civil 
War,  their  Wives  and  Widows 

Twenty-second,  Property  of  the  following  classes  of  persons  who 
are  legal  residents  of  the  commonwealth  to  the  amount  of  two  thou- 
sand dollars  in  the  case  of  each  person;  provided,  that  only  two 
thousand  dollars  of  the  combined  estate  of  any  veteran  and  his  wife 
shall  be  exempted;  and  provided,  further,  that  the  whole  estate,  real 
and  personal,  of  the  person  so  exempted  or  the  combined  property 
of  a  veteran  and  his  wife  does  not  exceed  five  thousand  dollars, 
exclusive  of  the  value  of  the  mortgage  interest  held  by  persons  other 
than  the  person  to  be  exempted  in  such  mortgaged  real  estate  as 
may  be  included  in  -said  whole  estate  or  combined  property ;  but  if, 
said  whole  estate  or  combined  property  being  less  than  two  thousand 
dollars,  the  sum  total  thereof  and  of  such  mortgage  interest  exceeds 
two  thousand  dollars,  the  amount  so  exempted  shall  be  two  thousand 
dollars: 

(a)  Soldiers  and  sailors,  who  served  in  the  military  or  naval 
service  of  the  United  States  in  the  war  of  the  rebellion,  in  the  Spanish 
war,  in  the  Philippine  insurrection  or  in  the  World  war,  and  were  hon- 
orably discharged  or  honorably  released  therefrom,  and,  by  reason  of 
injury  received  or  disease  contracted  while  in  such  service  and  in  the 
line  of  duty,  lost  the  sight  of  both  eyes,  or  of  one  eye,  the  sight  of 
the  other  having  been  previously  lost,  or  who  lost  one  or  both  feet, 
or  one  or  both  hands. 

(b)  Soldiers  and  sailors  who  served  and  were  honorably  discharged 
or  honorably  released  as  aforesaid,  and  who,  as  the  result  of  disabilities 
contracted  while  in  such  service  and  in  the  line  of  duty,  have  become 
permanently  incapacitated  for  the  performance  of  manual  labor  to 
an  extent  equivalent,  in  the  judgment  of  the  assessors,  to  the  loss  of 
a  hand  or  foot. 

(c)  Wives  or  widows  of  soldiers  or  sailors  who  would  be  entitled 
to  exemption  under  either  of  the  two  preceding  paragraphs. 

If  the  property  of  a  person  entitled  to  such  exemption  is  taxable 
in  more  than  one  town,  or  partly  without  the  commonwealth,  only 
such  proportion  of  the  two  thousand  dollars  exemption  shall  be  made 
in  any  town  as  the  value  of  the  property  taxable  in  such  town  bears 
to  the  whole  of  the  taxable  property  of  such  person.  The  certificate 
of  the  granting  of  a  pension  by  the  United  States  to  a  soldier  or 
sailor  for  an  injury  or  disability  shall,  while  the  pension  continues, 
be  sufficient  evidence  of  the  receiving  of  the  injury  or  disability; 


Assessment  of  Local  Taxes  .  213 

G.  L.  c.  59,  §  5,  CI.  23,  24,  25] 

but  the  assessors  may  receive  other  evidence  thereof.  A  person  ag- 
grieved by  the  judgment  of  the  assessors  may  appeal  to  the  county 
commissioners  within  the  time  and  in  the  manner  allowed  by  section 
sixty-four. 

Twenty-third,  Soldiers  and  sailors  who  served  in  the  military 
or  naval  service  of  the  United  States  in  the  war  of  the  rebellion 
and  were  honorably  discharged  therefrom  shall  be  assessed  for,  but 
shall  be  exempt  at  their  request  from  the  payment  of,  a  poll  tax, 
and,  if  they  are  not  entitled  to  exemption  under  the  preceding  clause, 
their  property,  and  the  property  of  their  wives  and  widows,  shall 
be  exempt  from  taxation  to  the  amount  of  one  thousand  dollars  in 
the  case  of  each  person;  provided,  that  the  combined  exemption  of 
such  a  soldier  or  sailor  and  his  wife  shall  not  exceed  one  thousand  dol- 
lars, and  provided,  further,  that  the  combined  estate,  real  and  per- 
sonal, of  the  person  so  exempted  and  of  the  husband  or  wife  of  such 
person  does  not  exceed  in  value  the  sum  of  five  thousand  dollars, 
exclusive  of  the  value  of  the  mortgage  interest  held  by  persons  other 
than  the  person  to  be  exempted  in  such  mortgaged  real  estate  as  may 
be  included  in  said  combined  estate;  but  if;  said  combined  estate 
being  less. than  five  thousand  dollars,  the  sum  total  thereof  and  of 
such  mortgage  interest  exceeds  one  thousand  dollars,  the  amount 
so  exempted  shall  be  one  thousand  dollars.  If  the  property  of  a 
person  entitled  to  such  exemption  is  taxable  in  more  than  one  town, 
or  partly  without  the  commonwealth,  only  such  proportion  of  the 
one  thousand  dollars  exemption  shall  be  made  in  any  town  as  the 
value  of  the  property  taxable  in  such  town  bears  to  the  whole  of  the 
taxable  property  of  such  person.  The  widows  of  soldiers  and  sailors 
who  served  as  aforesaid  and  who  lost  their  lives  in  the  war  of  the 
rebellion  shall  be  entitled  to  exemption  as  specified  in  the  preceding 
clause.  No  exemption  shall  be  made  under  this  clause  of  the  property 
of  a  person  not  a  legal  resident  of  the  commonwealth. 

Exemptions  Continued.  —  Government,  State  and 

Municipal  Bonds 

Twenty-fourth,  Bonds,  notes  or  certificates  of  indebtedness  of 
the  United  States. 

Twenty-fifth,  Bonds  or  certificates  of  indebtedness  of  the  com- 
monwealth issued  since  January  first,  nineteen  hundred  and  six,  and 
bonds,  notes  and  certificates  of  indebtedness  of  any  county,  city, 
town,  fire  district,  water  district,  light  district  or  improvement 
district,  in  the  commonwealth,  issued  on  or  after  May  first,  nineteen 


214  Taxation   in    Massachusetts 

[G.  L.  c.  59,  §  5,  CI.  26-30 
hundred  and  eight,  stating  on  their  face  that  they  are  exempt  from 
taxation  in  Massachusetts. 

The  state  has  no  power  to  tax  evidences  of  indebtedness 
issued  by  the  United  States.  The  lack  of  power  to  tax  is  not 
limited  to  bonds  issued  by  the  United  States  itself  but  extends 
to  bonds  issued  by  territories  and  dependencies  of  the  United 
States  and  municipalities  therein  and  incorporated  agencies  of 
the  United  States,  when  expressly  exempted  from 'state  taxa- 
tion by  Congress.1 

State  and  municipal  bonds  in  the  hands  of  residents  of  the 
commonwealth  were  formerly  subject  to  taxation;  but  bonds 
issued  in  recent  years  have  been  exempted  as  a  matter  of  policy, 
since  the  bonds  could  be  sold  at  a  lower  rate  of  interest  if  made 
non-taxable,  and  the  saving  in  interest  more  than  offset  the 
amount  lost  in  taxes. 

Exemptions  Continued.  —  Classified  Forest  Lands 

Twenty-sixth,  Land  classified  under  chapter  sixty-one,  except 
from  the  taxes  provided  for  in  said  chapter. 

The  exemption  of  forest  lands  is  discussed  more  fully  in 
connection  with  the  statutes  providing  for  the  taxation  of  such 
property.1 

Exemptions  Continued.  —  Intangible  Property  Otherwise 

Taxed 

Twenty-seventh,  Property  the  income  of  which  is  taxed  under 
chapter  sixty-two,  or  would  be  taxable  thereunder  if  the  property 
yielded  income,  except  as  provided  in  sections  forty-nine  to  fifty- 
three,  inclusive,  of  said  chapter. 

Twenty-eighth,  Deposits  in  savings  banks  and  other  institutions 
the  income  of  which  is  exempted  from  taxation  by  clause  first  of 
subsection   (a)   of  section  one  of  chapter  sixty-two. 

Twenty-ninth,  Shares  in  partnerships,  associations  or  trusts,  ex- 
cept as  provided  in  sections  forty-nine  to  fifty -three,  inclusive,  of  chap- 
ter sixty-two,  in  the  case  of  shares  the  income  of  which  is  taxable 
under  said  chapter. 

Thirtieth,  Capital  stock  and  personal  property  of  co-operative 
banks. 

1  Supra,  Part  1,  §  27. 

1  Chapter  61,  infra  page  426. 


Assessment  of  Local  Taxes  215 

G.  L.  c.  59,  §  5,  CI.  31-33] 

Thirty-first,    Stock  in  domestic  business  corporations,  as  defined 

in  section  thirty  of  chapter  sixty-three. 

Thirty-second,  Stock  in  other  corporations,  domestic  or  foreign, 
subject  to  taxation  under  section  fifty-eight  of  said  chapter,  in  those 
years  for  which  the  corporations  pay  their  corporate  franchise  taxes. 

It  has  never  been  the  intent  of  the  legislature  to  authorize 
the  continuance  of  local  taxation  upon  a  class  of  intangible 
property  which  is  reached  by  taxation  in  some  other  way,  and, 
by  reason  of  the  inherent  difficulties  in  subjecting  intangible 
property  to  local  taxation,  gradually  all  classes  of  intangible 
property  which  are  taxed  at  all  have  been  reached  by  some 
other  form  of  tax  than  the  local  direct  tax  and  have  been  with- 
drawn from  the  sphere  of  local  taxation. 

The  exemptions  established  by  clauses  twenty-seven  and 
twenty-nine  were  established  in  1916  as  one  of  the  necessary 
incidents  of  the  income  tax  act.1  Deposits  in  savings  banks 
have  been  exempted  from  taxation  since  1862,  because  the  de- 
posits are  indirectly  taxed  by  the  excise  tax  on  the  bank  which 
is  graded  in  proportion  to  the  deposits.2  Co-operative  banks 
are  exempt  with  respect  to  capital  stock  and  personal  property 
doubtless  because  their  capital  is  invested  almost  entirely  in 
mortgages  on  real  estate  which  itself  is  taxed.  Stock  in  domestic 
corporations  and  in  foreign  public  service  corporations  paying  a 
franchise  tax  to  this  commonwealth  has  been  exempt  since  1864, 
as  the  tax  on  the  franchise  is  indirectly  a  tax  on  the  stock.3 

Exemptions  Continued.  —  Intangible  Property  Held  by 

a  Fiduciary 

Thirty-third  (as  amended  by  St.  1921,  chap.  202),  Intangible 
property  held  by  any  fiduciary  in  this  commonwealth,  except  shares 
of  stock  taxable  under  section  one  of  chapter  sixty-three. 

Exemptions  Continued.  —  Special  Statutes  and  Charters 

In  addition  to  the  exemptions  from  taxation  established  by 
the  General  Laws,  the  legislature  has  sometimes  by  special  act 
exempted  a  designated  corporation  from  taxation  upon  the  whole 

1  G.  L.  c.  62,  infra  page  428. 

2  G.  L.  c.  63,  §  §  11-16  inc.,  infra  pages  515  to  520  inc. 

3  G.  L.  c.  63,  infra  pages  531  to  533  inc. 


216  Taxation   in    Massachusetts 

[G.  L.  c.  59,  §  5 

or  a  part  of  its  property.  It  is  not  unusual  in  such  a  case  for  the 
legislature  to  limit  the  value  of  the  property  which  it  thus 
exempts  from  taxation  and  questions  have  arisen  when  a  par- 
ticular piece  of  property  which  was  within  the  limit  when  ac- 
quired by  the  corporation  has  subsequently  increased  in  value 
until  it  has  risen  above  it.  When  the  exemption  applies  to  the 
lands  and  tenements  of  which  a  given  amount  of  property  may 
be  composed  it  follows  them  no  matter  how  much  they  may 
increase  in  value;1  but  when  the  exemption  is  a  general  one,  of 
property  to  a  certain  value,  all  above  that  amount  however 
and  whenever  acquired  is  liable  to  taxation.2  The  distinction 
is  a  narrow  one  and  may  possibly  have  been  drawn  with  a  view 
to  avoiding  the  effect  of  an  unsatisfactory  decision  without  di- 
rectly overruling  it. 

An  exemption  granted  to  a  particular  institution  is  applic- 
able to  property  in  towns  other  than  that  in  which  the  insti- 
tution is  located.3  When  the  amount  of  property  which  a 
corporation  to  which  a  special  exemption  has  been  granted  may 
lawfully  hold  is  limited  by  charter,  the  exemption  extends  to 
property  held  by  virtue  of  a  subsequent  statute  increasing  the 
amount  of  property  which  the  corporation  may  acquire.4  An 
exemption  applicable  to  all  of  the  property  of  a  corporation 
while  it  maintains  a  certain  building  for  the  public  use  is  not  lost 
with  respect  to  other  property  used  for  commercial  purposes  if 
the  original  use  of  the  building  is  maintained.5  When  the  char- 
ter of  a  charitable  corporation  provides  that  no  part  of  its  funds 
shall  be  exempted  from  taxation,  property  which  would  be 
exempt  if  in  the  hands  of  an  individual  would  not  be  taxable 
in  the  hands  of  the  corporation.6  An  agreement  between  two 
towns  relating  to  the  exemption  of  the  property  of  one  of  the 
towns  or  its  inhabitants  is  not  valid,7  unless  sanctioned  by  the 
legislature.8 

1  Hardy  v.  Waltham,  7  Pick.  108  (1828) ;  Harvard  College  v.  Aldermen 
of  Boston,  104  Mass.  470  (1870). 

2  Evangelical  Baptist  etc.  Society  v.  Boston,  192  Mass.  412  (1906). 

3  Harvard   College  v.   Kettell,   16   Mass.  204    (1819). 

4  Rural  Cemetery  v.  Worcester  County  Commissioners,  152  Mass.  408 
(1890). 

5  Old  South  Association  v.  Boston,  212  Mass.  299  (1912). 

6  Greenfield  v.  Franklin  County  Commissioners,  135  Mass.  566  (1863). 

7  Dillingham   v.  Snow,   5    Mass.   547    (1809). 

8  Capen  v.  Glover,  4  Mass.  305  (1808). 


Assessment  of  Local  Taxes  217 

G.  L.  c.  59,  §  5] 

An  exemption  from  taxation  contained  in  a  special  charter 
does  not  in  itself  carry  exemption  from  special  assessments  for 
local  improvements;9  but  an  exemption  from  "all  civil  imposi- 
tions, taxes  and  rates  "  does  include  such  an  exemption. 10  An 
exemption  "from  all  public  taxes"  will  include  special  assess- 
ments when  the  land  assessed  is  irrevocably  devoted  to  a  use 
which  will  necessarily  preclude  it  from  ever  deriving  any  benefit 
from  the  improvement  for  which  the  assessment  was  made.11 

Exemptions  Continued.  —  Property  Devoted  to  Public  Use 

There  is  another  large  class  of  exempt  property,  namely, 
property  devoted  to  the  public  use,  which,  although  not  specifi- 
cally exempted  by  statute,  is  not  taxed  because  it  is  believed  by 
the  courts  that  the  legislature  did  not  intend  to  subject  it  to  tax- 
ation. This  exemption  is  based  upon  the  uniform  practice  since 
the  earliest  establishment  of  the  colony,1  and  upon  the  inapplic- 
ability to  such  property  of  the  statutes  relating  to  the  collection 
of  taxes,  since  in  almost  every  case  the  discontinuance  of  public 
works  is  carefully  restricted  by  statute  and  it  is  not  to  be  sup- 
posed that  the  legislature  intended  such  statutes  to  be  rendered 
nugatory  by  the  sale  of  such  works  for  non-payment  of  taxes. 
In  the  absence  of  express  provisions  it  has  not  been  thought 
that  the  legislature  intended  to  overturn  the  practice  which 
had  received  general  acquiescence  for  such  a  long  period. 

The  exemption  applies  whether  the  property  is  owned  by 
a  county,  city  or  town,2  or  by  a  private  corporation,3  but  the 
property  of  a  private  corporation  is  not  exempt  unless  the  cor- 
poration is  under  legal  obligation  to  serve  the  public  and  the 
property  is  such  as  has  been  or  could  have  been  acquired  by 
eminent  domain,  or  is  irrevocably  dedicated  to  the  public  use.4 

9  Boston  Asylum  v.  Street  Commissioners  of  Boston,  180  Mass.  485  (1902). 

10  Harvard   College   v.  Aldermen   of  Boston,   104   Mass.  470    (1870). 

11  Mount  Auburn  Cemetery  v.  Cambridge,  150  Mass.  12  (1889). 

1  Worcester  v.  Western  Railroad  Corporation,  4  Met.  564,  566   (1842). 

2  Wayland  v.  Middlesex  County  Commissioners,  4  Gray  500  (1855)  (reser- 
voir);  Somerville  v.  Waltham,  170  Mass.  160  (1898)  (gravel-pit);  Miller  v. 
Fitchburg,  180  Mass.  32  (1901);  Chelsea  v.  Treasurer  &  Receiver  General 
237  Mass.  422  (1921). 

3  Worcester  v.  Western  Railroad  Corporation,  4  Met.  564  (1842)  (railroad) ; 
Milford  Water  Co.  v.  Hopkinton,  192  Mass.  491  (1906)  (waterworks;  see  how- 
ever G.  L.  c.  59,  §  6,  supra  page  218). 

4  Commonwealth  v.  Lowell  Gas  Light  Co.,  12  Allen  75  (1866)  (gas  works); 
Connecticut  Valley  St.  Ry.  Co.  v.  Northampton,  213  Mass.  54  (1912)  (street 
railway  bridge);  Collector  of  Boston  v.  Rising  Sun  Street  Lighting  Co.,  229 
Mass.  494  (1918)   (street  lights).     . 


218  Taxation   in   Massachusetts 

[G.  L.  c.  59,  §  6 
It  is  doubtful  if  a  municipal  corporation  can  ever  tax  property 
owned  by  itself,  whatever  use  the  land  may  be  put  to;5  and  it 
certainly  cannot  tax  such  property  when  the  property  itself 
or  the  income  therefrom  is  devoted  to  a  particular  public  use;6 
but  one  municipal  corporation  may  tax  the  property  of  another 
within  its  jurisdiction  leased  or  used  for  profit;7  unless  the  in- 
come therefrom  is  devoted  to  a  particular  public  use,  in  which 
case  it  may  be  that  such  property  is  exempt.8 

It  was  held  in  an  early  case  that  a  railroad  corporation  was 
not  taxable  for  the  land  within  its  location  devoted  to  railroad 
purposes  which  it  was  authorized  to  take  by  eminent  domain.9 
This  decision  was  ratified  by  implication  by  the  legislature  in 
a  statute  providing  that  land  taken  or  purchased  for  railroad, 
depot  or  station  purposes  outside  the  limits  of  the  route  of  the 
railroad  fixed  in  accordance  with  law  should  not  be  exempt  from 
taxation.10 

When  an  easement  only  is  taken  for  the  public  use  and 
the  easement  is  not  such  as  to  exclude  the  owner  of  the  fee 
from  substantial  enjoyment  of  the  land,  his  interest  in  the  land 
is  taxable;11  but  when  the  easement  taken  is  substantially  ex- 
clusive and  leaves  the  owner  of  the  fee  no  rights  of  any  real 
value,  the  land  itself  is  exempt  from  taxation.12 

The  exemption  arising  from  the  devotion  of  land  to  the 
public  use  extends  to  special  assessments  for  local  improve- 
ments 13  as  well  as  to  general  taxation. 

Payment  in  Lieu  of  Tax  on  Property  Held  for  Certain 

Municipal  Purposes 

Section  6.  Property  held  by  a  city,  town  or  district,  including 
the  metropolitan  water  district,  in  another  city  or  town  for  the  purpose 

5  Rossire  v.  Boston,  4  Allen  57  (1862). 

6  Burr  v.  Boston,  208  Mass.  537  (1911);  Massachusetts  General  Hospital 
v.  Boston,  212  Mass.  20  (1912);  Collector  of  Norton  v.  Oldfield,  219  Mass.  374 
(1914). 

7  Essex  County  v.  Salem,  153  Mass.  141  (1891).  See  also  Wayland  v. 
Middlesex  County  Commissioners,  4  Gray  500,  502   (1855). 

8  Burr  v.  Boston,  208  Mass.  537  (1911)  semble. 

9  Worcester  v.  Western  Railroad  Corporation,  4  Met.  564  (1842);  Boston 
&  Maine  R.  R.  v.  Cambridge,  8  Cush.  237  (1851). 

10  St.  1853,  c.  351,  §  3.  now  G.  L.  c.  160,  §  87,  infra  page  740. 

11  Hunt  v.  Boston,  183  Mass.  303   (1903). 

12  Lancy  v.  Boston,  186  Mass.  128   (1904). 

13  Worcester  County  v.  Worcester,  116  Mass.  193  (1874);  Boston  v.  Boston 
&  Albany  R.  R.  Co.,  170  Mass.  95   (1898). 


Assessment  of  Local  Taxes  219 

G.L.c.  59,  §§6,7] 
of  a  water  supply,  the  protection  of  its  sources,  or  of  sewage  disposal, 

if  yielding  no  rent,  shall  not  be  liable  to  taxation  therein;  but  the 
city,  town  or  district  so  holding  it  shall,  annually  in  September,  pay 
to  the  city  or  town  where  it  lies  an  amount  equal  to  that  which  such 
city  or  town  would  receive  for  taxes  upon  the  average  of  the  assessed 
values  of  the  land,  which  shall  not  include  buildings  or  other  struc- 
tures except  in  the  case  of  land  taken  for  the  purpose  of  protecting 
the  sources  of  an  existing  water  supply,  for  the  three  years  last  pre- 
ceding the  acquisition  thereof,  the  valuation  for  ea^h  year  being  re- 
duced by  all  abatements  thereon.  Any  part  of  such  land  or  buildings 
from  which  any  revenue  in  the  nature  of  rent  is  received  shall  be 
subject  to  taxation. 

If  such  land  is  part  of  a  larger  tract  which  has  been  assessed  as 
a  whole,  its  assessed  valuation  in  any  year  shall  be  taken  to  be  that 
proportional  part  of  the  valuation  of  the  whole  tract  which  the  value 
of  the  land  so  acquired,  exclusive  of  buildings,  bore  in  that  year 
to  the  value  of  the  entire  estate. 

Section  7.  The  assessors  of  a  city  or  town  where  land  is  acquired 
by  such  other  city,  town  or  district  for  water  supply  or  sewage  dis- 
posal shall,  within  one  year  after  such  acquisition,  determine  the 
average  valuation  of  such  land  under  the  preceding  section,  and 
certify  the  amount  so  determined  to  such  other  city,  town  or  district. 
The  mayor  or  selectmen,  the  commissioners  or  prudential  committee 
of  a  district,  or  the  metropolitan  district  commission,  within  six  months 
after  receipt  of  said  certificate,  may  appeal  from  such  determination 
to  the  superior  court  for  the  county  where  the  land  lies;  and  the 
court  shall  determine  the  valuation  in  the  manner  provided  in  the 
preceding  section,  and  sections  sixty-five  and  sixty-six,  so  far  as  ap- 
plicable, shall  govern  such  appeal. 

If  land  within  any  city  or  town  shall  have  been  taken  from  it 
for  said  purposes,  and  for  any  one  of  the  three  years  prior  to  the 
taking  shall  have  been  used  for  any  public  purpose,  and  for  that  reason 
no  taxes  shall  have  been  collected  thereon,  the  city  or  town  and  the 
board  or  officer  having  charge  of  the  land  so  taken  may  within  six 
years  after  the  taking  agree  as  to  the  value  of  the  land  upon  which 
the  annual  payment  is  to  be  made  as  aforesaid  from  the  time  of 
the  taking,  and  if  they  cannot  agree  the  board  or  officer  shall  notify 
the  city  or  town  thereof,  and  thereupon  the  value  shall  be  determined 
by  the  superior  court  under  said  sections  sixty-five  and  sixty-six, 
and  said  notice  shall  be  deemed  to  be  the  notice  referred  to  in  said 


220  Taxation   in   Massachusetts 

[G.L.c.  59,  §§8,  9 
section  sixty-five.  This  and  the  preceding  section  shall  apply  to 
property  held  for  the  purposes  of  the  metropolitan  water  supply, 
except  property  situated  in  Ashland,  Boylston,  Holden,  Hopkinton, 
Sterling  or  West  Boylston. 

The  words  "revenue  in  the  nature  of  rent"  in  section  six 
are  not  construed  so  broadly  as  to  justify  the  taxation  of  all 
property  held  by  a  city  or  town  in  connection  with  its  water 
supply  from  the  ownership  of  which  it  derives  pecuniary  advan- 
tage, and  consequently  a  reservoir  used  by  a  city  to  supply  mill 
owners  with  water  in  place  of  water  taken  by  the  city  is  not 
subject  to  taxation  under  section  six.1 

Excise  Tax  on  Certain  Ships  or  Vessels 

Section  8.  Individuals  or  partnerships  owning  an  interest  in 
any  ship  or  vessel  which  has  during  the  period  of  its  business  in  the 
year  preceding  April  first  been  engaged  in  interstate  or  foreign  carry- 
ing trade  shall  annually,  within  thirty  days  after  said  date,  make  a 
return  on  oath  to  the  assessors  of  the  town  where  such  individuals 
reside  or  where  such  partnerships  are  taxable  under  clause  seventh 
of  section  eighteen,  respectively,  setting  forth  the  name  of  the  ship 
or  vessel,  their  interest  therein,  and  the  value  of  such  interest.  If 
the  assessors  are  satisfied  of  the  truth  of  the  return  they  shall  assess 
an  excise  tax  of  one  third  of  one  per  cent  upon  such  interest;  and 
the  person  or  partnership  making  such  returns  shall  be  exempt  from 
any  tax  upon  said  interest  other  than  that  assessed  under  this  section. 

Whether  the  tax  imposed  by  this  statute  is  really  intended 
as  an  excise,  or  was  made  assessable  in  this  way,  with  an  ex- 
emption of  the  vessels  themselves,  for  the  encouragement  of 
the  business,  and  because  the  vessels  are  not  within  the  com- 
monwealth and  so  not  within  the  constitutional  provision  re- 
quiring proportional  taxation,  is  not  clear.1 

Place  of  Assessment  of  Poll  Taxes 

Section  9.  The  poll  tax  shall  be  assessed  upon  each  person  liable 
thereto  in  the  town  of  which  he  is  an  inhabitant  on  April  first  in 

1  Miller  v.  Fitchburg,  180  Mass.  32  (1901). 

1  Opinion   of   the   Justices,   195    Mass.  607,   611    (1908). 


Assessment  of  Local  Taxes  221 

G.L.c.  59,  §10] 
each  year,  except  in  cases  otherwise  provided  for  by  law.  The  poll 

tax  of  minors  liable  to  taxation  shall  be  assessed  to,  and  in  the  place 
of  the  residence  of,  the  parents  or  guardians  having  control  of  the 
persons  of  such  minors;  but  if  a  minor  has  no  parent  or  guardian 
within  the  commonwealth,  he  shall  be  personally  taxed  for  his  poll,* 
as  if  he  were  of  full  age.  The  poll  tax  of  every  other  person  under 
guardianship  shall  be  assessed  to  his  guardian  in  the  place  where 
the  guardian  is  taxed  for  his  own  poll.  In  a  city  each  inhabitant 
liable  to  assessment  shall  be  assessed  in  the  ward  where  he  dwells; 
but  no  tax  shall  be  invalid  by  reason  of  a  mistake  of  the  assessors 
in  ascertaining  the  ward  where  a  person  should  be  assessed. 

Section  10.  A  person  liable  to  a  poll  tax,  who  is  in  a  town  on 
April  first,  and  who,  when  inquired  of  by  the  assessors  thereof,  refuses 
to  state  his  legal  residence,  shall  for  the  purpose  of  taxation  be 
deemed  an  inhabitant  thereof.  If  he  designates  another  town  as  his 
legal  residence,  said  assessors  shall  notify  the  assessors  of  such  other 
town,  who  shall  thereupon  tax  him  as  an  inhabitant  thereof;  but  he 
shall  not  be  exempt  from  the  payment  of  a  tax  legally  assessed  upon 
him  in  his  legal  domicile. 

The  history  of  poll  taxes  in  this  commonwealth  is  discussed 
in  another  portion  of  this  work;1  in  the  following  pages  are  set 
forth  rules  for  determining  the  place  of  which  a  person  is  an 
inhabitant  within  the  meaning  of  section  nine  and  other  pro- 
visions of  the  tax  law. 

RULES   FOR  DETERMINING   DOMICILE 

In  general  terms,  one  may  be  designated  as  an  inhabitant 
of  that  place  which  constitutes  the  principal  seat  of  his  residence, 
of  his  business,  pursuits,  connections  and  attachments  and  of 
his  political  relations.  It  embraces  the  fact  of  residence  in  a 
place  with  the  intent  to  make  it  one's  home.2 

To  determine  in  any  given  case  of  what  city  or  town  a  person 
is  an  inhabitant  is  in  most  instances  easy  and  simple;  but  per- 
plexing questions  not  infrequently  arise  and  have  resulted  in 
a  mass  of  litigated  cases.  The  principles  of  law  involved  are 
well  settled,  but  the  application  of  these  principles  to  the  facts 
has  sometimes  caused  trouble. 

1  G.  L.  c.  59,  §  1,  supra  page  186. 

»  Lyman  v.  Fiske,  17  Pick.  231   (1835). 


222  Taxation   in    Massachusetts 

[G.  L.  c.  59,  §§  9,  10 

Inhabitancy,  residence  and  domicile  are  synonymous  terms; 
and  their  meaning  is  the  same  in  fixing  the  rights  and  obliga- 
tions of  individuals  for  the  purposes  of  taxation  as  for  acquiring 
a  settlement,  exercising  the  right  to  vote,  enforcing  rights  in 
court  and  other  similar  purposes.3  "Domicile"  is  the  term  most 
frequently  used  to  express  the  meaning  intended  as  "inhabi- 
tancy" is  cumbersome  and  "residence"  as  used  colloquially  or 
even  sometimes  by  the  courts  and  the  legislature,  unless  coupled 
with  the  word  "  legal,"  has  a  rather  broader  meaning. 

Every  man  must  have  a  domicile;  and  he  can  have  but  one 
at  any  given  time.4  His  domicile  is  the  place  in  which  he  lives 
with  the  intent  to  make  it  his  home,  and  domicile  thus  embraces 
both  act  and  intent.5  One  intends  however  certain  things  to 
which  the  law  gives  their  necessary  legal  consequences,  and  a 
person  who  lives  in  a  place  for  an  indefinite  period  without  the 
intent  of  returning  to  his  former  home  acquires  a  domicile  there 
regardless  of  his  personal  sentiments  or  his  desire  to  retain  his 
legal  residence  in  his  old  home  town.-  A  person  cannot  have 
one  domicile  for  the  general  purposes  of  life,  and  another  for 
the  purposes  of  taxation.6  A  person  who  owns  dwelling  houses 
in  more  than  one  town  and  occupies  each  of  them  a  substantial 
portion  of  the  year  may  however  as  a  practical  matter  elect  in 
which  town  he  shall  be  taxed,  for  his  own  intent  in  such  a  case 
is  almost  always  decisive;  and  if  he  forms  such  intent  while 
actually  living  in  one  of  the  houses  he  thereby  acquires  a  domi- 
cile in  the  town  in  which  it  is  situated.7  Motive,  as  distinguished 
from  intent,  is  immaterial.    One  may  change  his  domicile  from 

3  Lee  v.  Boston,  2  Gray  484  (1854);  Borland  v.  Boston,  132  Mass.  89 
(1882);  Stoughton  v.  Cambridge,  165  Mass.  251  (1896). 

4  Abington  v.  North  Bridgewater,  23  Pick.  170  (1839) ;  McDaniel  v.  King, 
5  Cush.  469  (1850) ;  Hallett  v.  Bassett,  100  Mass.  167  (1868) ;  Borland  v.  Boston, 
132  Mass.  89   (1882). 

5  Putnam  v.  Johnson,  10  Mass.  488  (1913);  Harvard  College  v.  Gore,  5 
Pick.  370  (1827) ;  Lyman  v.  Fiske,  17  Pick.  231  (1835) ;  Holmes  v.  Greene,  7  Gray 
299  (1856) ;  Thayer  v.  Boston,  124  Mass.  132  (1878) ;  Viles  v.  Waltham,  157  Mass. 
542  (1893). 

6  Mead  v.  Boxborough,  11  Cush.  362  (1853);  Kirkland  v.  Whately,  4  Allen 
462  (1862);  Whitney  v.  Sherborn,  12  Allen  111  (1866);  Wilbraham  v.  Ludlow, 
99  Mass.  587  (1868);  Dickinson  v.  Brookline,  181  Mass.  195  (1902);  Babcock  v. 
Slater,  212  Mass.  434  (1912);  Feehan  v.  Tax  Commissioner,  237  Mass.  169 
(1921). 

7  Thayer  v.  Boston,  124  Mass.  132  (1878) ;  Gardiner  v.  Brookline,  181  Mass. 
162  (1902);  Barron  v.  Boston,  187  Mass.  168  (1905);  Emery  v.  Emery,  218 
Mass.  227  (1914). 


Assessment  of  Local  Taxes  223 

G.  L.  c.  59,  §§  9,  10] 

one  town  to  another  merely  to  diminish  the  amount  of  his  taxes 
if  the  act  and  intent  are  both  present.8 

A  domicile  once  established  remains  until  a  new  one  is  ac- 
quired,9 and  consequently  one  who  has  abandoned  his  original 
home  with  intent  never  to  return  does  not  lose  his  domicile  until 
he  has  acquired  a  new  one  by  arriving  at  a  different  place  with 
the  intent  to  stay  there  an  indefinite  period.10  If  there  is  any 
exception  to  this  rule  it  is  the  case  of  an  inhabitant  of  this 
commonwealth  who  has  left  it  intending  never  to  return  and  is 
upon  the  first  day  of  April  without  the  commonwealth  in  good 
faith  and  with  reasonable  despatch  actually  upon  his  way  to 
his  new  home.11  Domicile  once  acquired  is  presumed  to  con- 
tinue and  the  burden  of  proof  is  on  him  who  seeks  to  establish 
a  change.12 

Domicile  is  not  lost  by  absence  for  a  merely  temporary  pur- 
pose with  intent  to  return.13  An  intent  to  return  at  a  re- 
mote and  indefinite  period  will  not  however  control  an  actual 
dwelling  at  a  different  place  with  all  the  characteristics  of  a  per- 
manent home  and  place  of  abode.14 

In  some  cases  domicile  may  be  acquired  without  physical 
presence;  as  in  the  case  of  a  minor  supported  by  his  parents,  or 
of  a  married  woman.  The  domicile  of  a  married  woman  follows 
that  of  her  husband,  except  in  cases  where  the  wife  brings  suit 
for  divorce  founded  on  the  husband's  wrong.15    A  minor  until 

s  Draper  v.  Hatfield,  124  Mass.  53  (1878) ;  McConnell  v.  Kelley,  138  Mass. 
372  (1885);  Gardiner  v.  Brookline,  181  Mass.  162  (1902). 

9  Jennison  v.  Hapgood,  10  Pick.  77  (1830);  Abington  v.  North  Bridgewater, 
23  Pick.  170  (1839);  Kilburn  v.  Bennett,  3  Met.  199  (1841);  Sullivan  v.  Ash- 
field,  227  Mass.  24  (1917). 

10  Otis  v.  Boston,  12  Cush.  44  (1853) ;  Buckley  v.  Williamstown,  3  Gray 
493  (1855);  Wilson  v.  Terry,  9  Allen  214  (1864);  Adams  v.  Nantucket,  11 
Allen  203  (1865).    See  however,  Carnoe  v.  Freetown,  9  Gray  357  (1857). 

11  Briggs  v.  Rochester,  16  Gray  337  (1860);  Colton  v.  Longmeadow,  12 
Allen  598  (1866);  Borland  v.  Boston,  132  Mass.  89  (1882). 

12  Kilburn  v.  Bennett,  3  Met.  199  (1841);  Chicopee  v.  Whately,  6  Allen 
508  (1863);  Thayer  v.  Boston,  124  Mass.  132  (1878);  Sullivan  v.  Ashfield,  227 
Mass.  24  (1917). 

13  Commonwealth  v.  Walker,  4  Mass.  556  (1808) ;  Granby  v.  Amherst,  7 
Mass.  1  (1810) ;  Jennison  v.  Hapgood,  10  Pick.  77  (1830) ;  Sears  v.  Boston,  1 
Met.  250  (1840);  Opinion  of  the  Justices,  5  Met.  587  (1843);  Cabot  v.  Boston, 
12  Cush.  52  (1853);  Lee  v.  Boston,  2  Gray  484  (1854);  Cochrane  v.  Boston, 
4  Allen  177   (1862). 

14  Thorndike  v.  Boston,  1  Met.  242  (1840) ;  Sleeper  v.  Paige,  15  Gray  349   * 
(1860);  Hallett  v.  Bassett,  100  Mass.  167  (1868). 

15  Burtis  v.  Burtis,  161  Mass.  508  (1894);  Stoughton  v.  Cambridge,  165  Mass. 
251   (1896). 


224  Taxation   in   Massachusetts 

[G.L.c.  59,  §§9,10 
emancipated  retains  the  domicile  of  his  father.16  A  man  has 
been  in  some  instances  allowed  to  acquire  a  domicile  by  sending 
his  wife  to  a  place  he  intends  to  make  his  home.17  One  who 
has  acquired  a  domicile  and  left  it  for  a  temporary  purpose  would 
not  lose  it  by  the  departure  of  his  wife  without  his  knowledge 
or  consent.18 

A  person's  obligation  to  pay  taxes  is  fixed  on  the  first  day 
of  April  and  if  he  changes  his  domicile  after  that  date  but  before 
the  taxes  are  actually  assessed  he  is  none  the  less  assessable  in 
his  original  domicile.19  If  he  changes  his  domicile  after  an 
appropriation  is  voted  and  expenses  incurred  by  the  town  in 
which  he  resides  but  before  the  first  day  of  April  he  is  not  liable 
for  any  part  of  the  appropriation.20 

A  question  of  domicile  not  uncommonly  requires  for  its  solu- 
tion an  inquiry  into  the  habits,  character,  pursuits,  domestic 
relations  and  in  general  the  whole  history  of  the  person  assessed 
from  his  youth  to  the  time  of  the  assessment,  and  any  evidence 
having  a  legitimate  bearing  upon  the  facts  which  establish  dom- 
icile is  admissible.21     Upon  the  question  of  intent  the  person 

16  Opinion  of  the  Justices,  5  Met.  587  (1843).  When  the  domicile  of  a 
minor  under  guardianship  is  at  issue  the  intent  of  the  guardian  is  to  be  re- 
garded.    Kirkland  v  Whately,  4  Allen  462   (1862). 

17  Williams  v.  Roxbury,  12  Gray  21  (1858);  Bangs  v.  Brewster,  111  Mass. 
382  (1873).  So  also,  when  a  man  is  absent  from  his  former  home  the  greater 
part  of  the  time,  but  his  wife  remains,  there  is  evidence  that  he  has  not  lost 
his  domicile.    Feehan  v.  Tax  Commissioner,  237  Mass.  169   (1921). 

18  Lee  v.  Lenox,  15  Gray  496   (1860). 

19  Harman  v.  New  Marlborough,  9  Cush.  525  (1852). 

20  Dow  v.  First  Parish  in  Sudbury,  5  Met.  72  (1842) ;  Jackman  v.  School 
District  in  Salisbury,  5  Gray  413   (1855). 

21  Evidence  that  a  man  had  a  permanent  position  in  a  certain  town  is 
admissible,  Cole  v.  Cheshire,  1  Gray  441  (1854).  Evidence  that  the  selectmen 
put  a  man's  name  on  the  voting  list  without  application  from  him  is  inad- 
missible, Fisk  v.  Chester,  8  Gray  506  (1857).  Evidence  that  a  man  was  in  a 
town  only  occasionally  and  for  short  visits  is  admissible,  Wilson  v.  Terry,  9 
Allen  214  (1864).  Evidence  that  a  man  endeavored  to  conceal  his  residence 
from  the  assessors  is  admissible  on  the  question  whether  he  removed  in  good 
faith,  Draper  v.  Hatfield,  124  Mass.  53  (1878).  Evidence  of  the  amount  of  a 
man's  property  may  be  excluded  at  the  discretion  of  the  court,  Thayer  v.  Boston, 
124  Mass.  132  (1878).  Evidence  that  a  man  attended  town  meetings,  took  part 
in  discussions  there  and  voted  is  admissible,  but  not  private  discussions  of 
town  affairs,  Weld  v.  Boston,  126  Mass.  166  (1879).  Evidence  that  a  man  de- 
clined nomination  to  the  common  council  on  the  ground  that  he  had  no 
interest  in  the  affairs  of  the  city  is  inadmissible,  Pickering  v.  Cambridge,  144 
Mass.  244  (1887).  Evidence  that  a  man  paid  a  tax  in  a  town  in  the  preceding 
years  is  admissible,  Babcock  v.  Slater,  212  Mass.  434  (1912).  Evidence  that  a 
man  voted,  paid  taxes  and  was  enrolled  in  the  military  census  in  a  certain 
town  is  material,  but  not  conclusive,  Feehan  v.  Tax  Commissioner,  237  Mass. 
169  (1921). 


Assessment  of  Local  Taxes  225 

G.L.c.  59,  §§9,10] 

assessed  may  testify  himself,22  and  he  may  introduce  in  his  own 
favor  declarations  made  by  himself  at  the  time  he  was  removing 
or  performing  some  other  act  affecting  his  domicile.23  Such 
declarations  accompanying  an  act  are  admitted  on  general  prin- 
ciples of  the  law  of  evidence  as  part  of  the  res  gestae;  but  mere 
declarations  not  accompanying  an  act  are  not  admissible  in  his 
favor.24  Past  declarations  of  the  person  assessed  as  to  his  dom- 
icile or  intentions  may  be  used  against  him  whether  they  ac- 
companied an  act  or  not,  as  admissions  against  interest.25 

One  may  if  he  wishes  change  his  domicile  without  notifying 
the  assessors  of  either  his  new  or  his  old  domicile;26  such  a  notice 
is  usually  given  in  cases  where  the  change  is  merely  one  of  intent 
as  a  matter  of  self-protection.  That  a  man  is  wrongly  assessed 
in  another  town  is  no  reason  that  he  should  not  be  assessed  in 
the  town  of  his  real  domicile,27  and  if  he  is  obliged  to  pay  both 
taxes  it  is  his  own  fault  in  not  contesting  both. 

When  the  boundary  line  between  two  towns  passes  through 
a  dwelling  house,  the  occupant  is  taken  to  be  a  resident  of  that 
town  in  which  he  performs  those  functions  which  characterize 
a  home,  such  as  sleeping,  eating,  sitting  and  receiving  visitors, 
sleeping  being  the  most  preponderating  circumstance.28 

It  has  been  held  that  a  partnership  may  be  said  to  have  a 

22  Fisk  v.  Chester,  8  Gray  506  (1857);  Wright  v.  Boston,  126  Mass.  161 
(1879). 

23  Thorndike  v.  Boston,  1  Met.  242  (1840);  Kilburn  v.  Bennett,  3  Met. 
199  (1841);  Cole  v.  Cheshire,  1  Gray  441  (1854);  Monson  v.  Palmer,  8  Allen 
551  (1864);  Viles  v.  Waltham,  157  Mass.  542  (1893);  Gardiner  v.  Brookline, 
181  Mass.  162  (1902). 

2*  Salem  v.  Lynn.  13  Met.  544  (1847);  Wilson  v.  Terry,  9  Allen  214  (1864); 
Wright  v.  Boston,  126  Mass.  161  (1879);  Weld  v.  Boston,  126  Mass.  166  (1879); 
Pickering  v.  Cambridge,  144  Mass.  244  (1887). 

25  Deeds  given  by  or  to  the  person  assessed  dated  about  the  time  of  the 
assessment  in  which  he  is  described  as  of  the  town  in  which  he  was  assessed  are 
admissible  against  him  as  implied  admissions,  Weld  v.  Boston,  126  Mass.  166 
(1879) ;  Babcock  v.  Slater,  212  Mass.  434  (1912) ;  but  copies  of  such  deeds  are 
not  admissible  without  notice  to  the  plaintiff  to  produce  the  originals,  Bourne 
v.  Boston,  2  Gray  494  (1854);  Draper  v.  Hatfield,  124  Mass.  53  (1878).  Evi- 
dence that  plaintiff  said  he  wanted  no  trouble  and  would  pay  half  the  tax 
if  the  town  would  abate  the  rest  is  offer  of  compromise  merely  and  inad-« 
missible.    Draper  v.  Hatfield,  124  Mass.  53  (1878). 

26  Barron  v.  Boston,  187  Mass.  168  (1905). 

27  Harman  v.  New  Marlborough,  9  Cush.  525  (1852).  A  person  taxed  for 
the  same  property  in  two  towns  is  not  able  to  throw  the  burden  of  the  con- 
test on  the  towns.  See  Welch  v.  Boston,  208  Mass.  326  (1911);  G.  L.  c. 
60,  §  98,  infra  page  408. 

28  Abington  v.  North  Bridgewater,  23  Pick.  170  (1839);  Chenery  v.  Wal- 
tham, 8  Cush.  327  (1851). 


226  Taxation   in    Massachusetts 

[G.L.c.  59,  §11 
domicile  in  the  place  where  its  business  is  carried  on.28  The 
domicile  of  a  corporation  is  the  state  in  which  it  is  organized 
rather  than  that  in  which  its  principal  place  of  business  is  sit- 
uated, so  that  a  foreign  corporation  cannot  have  a  domicile  in 
this  commonwealth.30  There  is  difficulty  in  ascribing  a  domicile 
in  any  particular  city  or  town  in  this  commonwealth  to  a  do- 
mestic corporation,  and  although  it  has  sometimes  been  inti- 
mated that  the  domicile  of  a  corporation  was  the  place  with 
which  it  was  chiefly  identified  or  where  its  principal  place  of 
business  was  situated  and  while  the  difficulties  of  ascribing  a 
domicile  to  a  corporation  are  not  insuperable,31  yet  partly  on 
account  of  such  difficulties  and  partly  on  account  of  the  double 
taxation  which  would  result,  a  domestic  corporation,  it  has  long 
been  held,  is  not  a  resident  of  any  town  or  city  in  this  common- 
wealth so  as  to  be  taxable  for  its  personal  property  there.32 

Where  and  to  Whom  Real  Estate  is  Assessed 

Section  11.  Taxes  on  real  estate  shall  be  assessed,  in  the  town 
where  it  lies,  to  the  person  who  is  either  the  owner  or  in  possession 
thereof  on  April  first,  and  the  person  appearing  of  record,  in  the  rec- 
ords of  the  county,  or  of  the  district,  if  such  county  is  divided  into 
districts,  where  the  estate  lies,  as  owner  on  April  first,  even  though 
deceased,  shall  be  held  to  be  the  true  owner  thereof,  and  so  shall  the 
person  so  appearing  of  record  under  a  tax  deed  not  invalid  on  its 
face.  Real  estate  held  by  a  religious  society  as  a  ministerial  fund 
shall  be  assessed  to  its  treasurer  in  the  town  where  the  land  lies. 
Buildings  erected  on  land  leased  by  the  commonwealth  under  section 
twenty-six  of  chapter  seventy-five  shall  be  assessed  to  the  lessees, 
or  their  assignees,  at  the  value  of  said  buildings.  Except  as  provided 
in  the  three  following  sections,  mortgagors  of  real  estate  shall  for  the 
purpose  of  taxation  be  deemed  the  owners  until  the  mortgagee  takes 
possession,  after  which  the  mortgagee  shall  be  deemed  the  owner. 

Taxes  on  real  estate  are  not  assessed  upon  the  real  estate 
itself,   regardless  of  ownership,   but   are   assessed   upon   indi- 

2»  Ricker  v.  American  Loan  &  Trust  Co.,  140  Mass.  346   (1885). 

30  Boston  Investment  Co.  v.  Boston,  158  Mass.  461   (1893). 

31  The  domicile  of  a  corporation  organized  by  special  statute  to  maintain 
a  cemetery  in  a  certain  place  is  the  town  in  which  the  cemetery  is  located, 
and  not  the  town  in  which  the  officers  of  the  corporation  perform  their  duties 
and  the  meetings  of  the  corporation  are  held.  Collector  of  Boston  v.  Mount 
Auburn  Cemetery,  217  Mass.  286  (1914). 

32  G.  L.  c.  63,  §  30,  infra  page  529. 


Assessment  of  Local  Taxes  227 

G.L.  c.  59,  §11] 

viduals  by  reason  of  their  ownership;  and  although  such  taxes 
constitute  a  lien  upon  the. land,  the  primary  liability  is  upon 
the  person  to  whom  they  have  been  assessed.1  Even  in  the  case 
of  the  unimproved  woodland  of  a  non-resident,  the  tax  cannot 
be  sustained  as  one  upon  the  land  itself  and  the  naming  of  the 
owner  be  regarded  as  immaterial.2  It  is  not  however  the  policy 
of  the  law  to  require  the  assessors  to  tax  the  different  estates 
and  interests  which  may  exist  in  a  certain  parcel  of  land  to  the 
respective  owners  thereof,  but  instead  one  person  or  set  of  per- 
sons is  assessed  the  entire  tax  on  each  parcel  of  land;3  and  such 
person  must  be  either  the  owner  of  the  fee  or  the  person  in  pos- 
session of  the  land.  There  may  be  some  circumstances  under  which 
an  easement  in  gross  may  be  assessable  to  the  holder;4  and  when 
one  estate  or  interest  in  a  piece  of  land  is  exempt  from  taxation 
and  the  others  are  not  it  may  be  proper  to  assess  the  latter  es- 
tates at  their  own  value  and  not  at  the  value  of  the  land  itself;5 
but  ordinarily  the  land  itself  is  assessed  at  its  whole  value  and 
not  the  different  estates  therein.  The  assessors  should  however 
take  into  consideration  easements  or  restrictions  which  add  to 
or  detract  from  the  fair  cash  value  of  the  land,  when  they  are 
brought  to  their  attention,  and  are  bound  to  assess  the  land  ac- 
cordingly.6 

The  "  owner  "  is  the  legal  owner  of  the  fee,  and  even  a  mere 
trustee  without  power  of  control  or  management  and  under  cov- 
enant to  convey  as  directed,  if  he  holds  the  legal  title  to  land, 
is  the  person  to  be  assessed  for  it.7  A  tax  assessed  to  one  who  is 
neither  owner  nor  in  possession  is  void.8  A  tax  on  real  estate 
cannot  be  legally  assessed  to  an  "  owner  unknown  "  when  the 
assessors  can  with  reasonable  diligence  ascertain  who  is  in  actual 
possession  or  by  reference  to  the  record  have  means  of  knowing 

1  Webber  Lumber  Co.  v.  Shaw,  189  Mass.  366  (1905);  Equitable  Trust 
Co.  v.  Kelsey,  209  Mass.  416  (1911). 

2  Stone  v.  New  England  Box  Co.,  216  Mass.  8  (1913). 

3  Parker  v.  Baxter.  2  Gray  185,  189  (1854);  Worcester  v.  Boston,  179  Mass. 
41,  48  (1901). 

*  Flax  Pond  Water  Co.  v.  Lynn,  147  Mass.  31   (1888). 

5  Supra  page  196. 

6  Lodge  v.  Swampscott.  216  Mass.  260   (1913). 

7  Miner  v.  Pingree,  110  Mass.  47  (1872);  Hough  v.  North  Adams,  196  Mass. 
290  (1907);  Dunham  v.  Lowell,  200  Mass.  468  (1904). 

8  Sargeant  v.  Bean,  7  Gray  125  (1856) ;  Rossire  v.  Boston,  4  Allen  57  (1862) ; 
Desmond  v.  Babbitt,  117  Mass.  233  (1875);  Stone  v.  New  England  3ox  Co., 
216  Mass,  8  (1913). 


228  Taxation   in    Massachusetts 

[G.L.c.  59,  §11 

who  has  the  legal  title.9  When  there  is  no  person  in  apparent 
occupation  of  a  lot  of  land,  it  is  the  duty  of  the  assessors  to 
make  inquiry  as  to  its  ownership.  If  with  reasonable  diligence 
they  cannot  obtain  trustworthy  information  they  would  be  justi- 
fied in  taxing  it  as  the  property  of  an  unknown  proprietor;  but 
they  would  not  thereby  acquire  thd  right  to  tax  it  to  a  person 
who  was  neither  owner  nor  occupant.10 

The  tax  should  be  assessed  to  the  owner  of  record  and  the 
holder  of  an  unrecorded  deed  should  not  be  considered.11  When 
there  has  been  a  sale  for  non-payment  of  a  previous  tax,  the  tax 
should  be  assessed  to  the  record  holder  of  the  tax  title,  although 
the  right  of  redemption  has  not  been  lost.12  A  tax  deed  good 
on  its  face  but  invalid  by  reason  of  an  error  in  the  assessment 
or  elsewhere  not  apparent  on  the  face  of  the  deed  is  sufficient 
to  justify  an  assessment  to  the  holder;13  but  an  assesssment 
based  upon  a  tax  deed  invalid  on  its  face  is  not  an  assessment 
to  the  person  appearing  of  record  as  the  owner  and  is  invalid.14 

It  was  formerly  held  that  a  tax  on  real  estate  must  be  assessed 
to  living  owners ;  and  assessment  to  a  person  deceased  who  owned 
the  land  at  his  death  is  illegal  and  void.15  Since  1889  however 
the  statutes  have  permitted  the  assessment  of  land  to  the  person 
appearing  of  record  to  be  the  owner,  even  if  deceased.  A  cor- 
poration, domestic  or  foreign,  is  taxable  for  its  real  estate  like 
an  individual  owner  in  the  city  or  town  in  which  the  land  lies.16 

The  tax  is  assessed  to  the  person  who  was  owner  or  occupant 
on  the  first  day  of  April,  and  it  is  immaterial  that  the  assess- 
ment was  in  fact  made  at  a  subsequent  date  and  that  the  prop- 

9  Oakham  v.  Hall,  112  Mass.  535  (1873);  McDonough  v.  Everett,  237 
Mass.  378  (1921). 

10  Desmond  v.  Babbitt,  117  Mass.  233  (1875). 

11  Tucker  v.  Deshon,  129  Mass.  566   (1880). 

12  Butler  v.  Stark,  139  Mass.  19  (1885).  When  a  city  or  town  is  the 
purchaser  at  a  tax  sale,  the  land  should  be  subsequently  assessed  to  the  owner 
of  the  right  of  redemption.    Infra  page  372. 

13  Roberts  v.  Welsh,  192  Mass.  278  (1906) ;  Solis  v.  Williams,  205  Mass. 
350  (1910);  Conners  v.  Lowell,  209  Mass.  Ill  (1911).  This  was  expressly  pro- 
vided by  St.  1915,  c.  237,  §23,  now  included  in  §11.  In  Welsh  v.  Briggs, 
204  Mass.  540  (1910),  it  was  held  that  if  land  owned  by  A  and  standing 
in  his  name  in  the  registry  of  deeds  is  assessed  to  B  as  the  owner  of  it  and 
is  sold  for  taxes  and  is  bought  by  C,  and  afterward  the  land  in  question  is 
assessed  as  the  land  of  C,  sold  for  taxes  and  bought  by  D,  D  gets  a  good  title. 

14  Conners  v.  Lowell,  209  Mass.  Ill   (1911). 

15  Sawyer  v.  Mackie,  149  Mass.  269   (1889). 

16  Tremont  Bank  v.  Boston,  1  Cush.  142  (1848) ;  Dunnell  Manufacturing 
Co.  v.  Pawtucket,  7  Gray  277  (1856). 


Assessment  of  Local  Taxes  229 

G.L.c.  59,  §11] 

erty  changed  hands  in  the  interval.17  Even  when  land  has  been 
taken  by  eminent  domain  after  the  first  day  of  April,  the  owner 
is  personally  liable  for  the  tax.18  If  land  is  conveyed  on  the 
first  day  of  April  and  the  deed  then  recorded,  it  may  be  assessed 
to  either  the  grantor  or  the  grantee,  as  there  is  no  point  of  time, 
less  than  the  day,  at  which  trie  tax  can  be  regarded  as  laid,  and 
it  will  be  sustained  by  ownership  or  possession  during  any  part 
of  the  day.19 

Land  owned  in  common  must  be  assessed  as  one  parcel  to 
the  tenants  in  common  instead  of  one  undivided  half  to  each;20 
but  by  statute  when  there  is  more  than  one  record  owner  an 
assessment  may  be  made  in  the  name  of  one  or  more  of  them 
and  shall  be  deemed  to  be  made  in  the  name  of  the  owner  of 
the  land.21  Parcels  of  land  owned  in  severalty  by  different  own- 
ers must  of  course  be  separately  assessed,22  and  when  lots  are 
owned  or  occupied  by  the  same  person,  if  .they  are  separated 
either  physically,  or  by  the  use  to  which  they  are  devoted,  or 
by  their  mode  of  occupation,  a  tax  laid  upon  an  entire  valua- 
tion would  not  be  a  lien  upon  each  separate  parcel.23  Even  a  va- 
cant piece  of  land  owned  by  one  individual  may  be  assessed  in  lots 
instead  of  as  a  whole  when  it  appears  that  a  plan  dividing  it 
into  lots  has  been  made  and  recorded  by  the  owners  and  that 
some  of  the  lots  have  been  sold.24 

To  justify  an  assessment  to  the  person  in  possession  there 
must  be  an  unqualified  seisin  of  the  freehold  in  him  or  an 
exclusive  occupation  under  a  lease  or  other  agreement  or  perhaps 
such  an  occupation  purporting  to  be  under  a  lease;25  and  the 
enjoyment  of  a  non-exclusive  easement  in  the  land  or  con- 
structive occupation  such  as  is  had  by  the  lessor  is  not  sufficient.26 

«  Kearns  v.  Cunniff,  138  Mass.  434   (1885). 
18  Richardson  v.  Boston,  148  Mass.  508  (1889). 
is  Hill  v.  Bacon,   110   Mass.  387   (1872). 

20  Sullivan  v.  Boston,  198  Mass.  119  (1908);  Curtiss  v.  Sheffield,  213  Mass. 
239  (1913). 

21  G.  L.  c.  60,  §  56,  infra  page  366.  And  see  also  McLoud  v.  Mackie,  175 
Mass.  355  (1900). 

22  Jennings  v.  Collins,  99  Mass.  29   (1868). 

23  Jennings  v.  Collins,  99  Mass.  29  (1868). 

24  Sullivan  v.  Boston,  198  Mass.  119   (1908). 

25  Flax  Pond  Water  Co.  v.  Lynn,  143  Mass.  31  (1888)  (exclusive  easement); 
Southworth  v.  Edmands,  152  Mass.  203  (1890)  (husband  as  head  of  family); 
Bates  v.  Sharon,  175  Mass.  293  (1900)    (life-tenant). 

28  Lynde  v.  Brown,  143  Mass.  337  (1887) ;  Kerslake  v.  Cummings,  180  Mass. 
65  (1901);  Hamilton  Mfg.  Co.  v.  Lowell,  185  Mass.  115  (1904). 


230  Taxation   in   Massachusetts 

[G.  L.  c.  59,  §  12 

The  provisions  for  the  taxation  of  mortgaged  land  contained 
in  the  statute  at  the  head  of  this  section  are  mandatory,  and  the 
assessment  of  such  land  in  any  other  way  is  void.27 

The  provision  as  to  the  taxation  of  real  estate  held  by  a  reli- 
gious society  as  a  ministerial  fund  first  appeared  in  the  Revised 
Statutes  of  1836  and  has  remained  since  its  first  enactment  with- 
out material  modification.  It  was  held  that  a  ministerial  fund 
was  taxable  prior  to  the  enactment  of  this  statute  and  that 
the  statute  was  not  intended  to  create  any  new  liability,  but 
only  to  give  a  more  specific  and  practical  direction  as  to  the  mode 
of  assessment.28  The  statute  makes  it  clear  that  such  property 
is  not  exempt  as  belonging  to  a  charitable  corporation;29  and 
such  property  is  taxable  whether  held  by  a  religious  society 
proper  or  by  an  auxiliary  corporation.30 

Mortgaged  Land 

Section  12.  If  any  person  has  an  interest  in  real  estate,  not 
exempt  from  taxation  under  section  five,  as  holder  of  a  duly  recorded 
mortgage  given  to  secure  the  payment  of  a  fixed  and  certain  amount 
of  money,  the  amount  of  his  interest  as  mortgagee  shall  be  assessed 
as  real  estate  in  the  town  where  the  land  lies;  and  the  mortgagor 
shall  be  assessed  only  for  the  value  of  such  real  estate  after  deducting 
the  assessed  value  of  the  interest  therein  of  such  mortgagee.  If  such 
estate  is  situated  in  two  or  more  towns,  the  amount  of  the  mortgagee's 
interest  to  be  assessed  in  each  town  shall  be  proportioned  to  the 
assessed  value  of  the  mortgaged  real  estate  in  the  respective  towns, 
deducting  therefrom  the  taxable  amount  of  prior  mortgages,  if  any, 
thereon. 

The  effect  of  this  statute  is  to  make  the  interest  of  a  mort- 
gagee for  all  purposes  of  taxation  real  estate  subject  to  local 
taxation.  It  applies  to  corporations  which  are  mortgagees  as 
well  as  to  natural  persons.1    Prior  to  the  enactment  of  the  income 

27  Rossire  v.  Boston,  4  Allen  57  (1862);  Davis  v.  Boston,  129  Mass.  377 
(1880). 

28  Trustees  of  Ministerial  Fund  v.  Gloucester,  19  Pick.  542  (1837) ;  Trustees 
of  the  Greene  Foundation  v.  Boston,  12  Cush.  54   (1853). 

29  Trustees  of  Ministerial  Fund  v.  Gloucester,  19  Pick.  542  (1837) ;  Trustees 
of  the  Greene  Foundation  v.  Boston,  12  Cush.  54  (1853) ;  Third  Congregational 
Society  v.  Springfield,  147  Mass.  396  (1888). 

30  Trustees  of  the  Greene  Foundation  v.  Boston,  12  Cush.  54  (1853). 

1  Firemen's  Fire  Insurance  Co.  v.  Commonwealth,   137  Mass.  80   (1884). 


Assessment  of  Local  Taxes  231 

G.  L.  c.  59,  §  13] 

tax  and  the  exemption  of  bonds  and  notes  from  local  taxation 
it  was  held  that  bonds  secured  by  mortgage  of  real  estate  were 
taxable  only  upon  the  excess  of  the  value  of  the  bonds  over 
the  value  of  the  real  estate  although  the  bondholder  did  not 
himself  hold  the  mortgage;2  but  to  entitle  the  bondholder  to 
such  an  exemption  the  mortgaged  real  estate  must  have  been 
taxable  in  this  commonwealth,  and  bonds  secured  by  mortgage 
on  real  estate  situated  in  whole  or  in  part  outside  the  common- 
wealth 3  and  any  indebtedness  secured  b>  mortgage  on  real 
estate  situated  within  the  commonwealth  but  exempted  by 
law  from  taxation  were  taxable  for  their  full  value.4  When 
the  taxation  of  bonds  and  notes  was  placed  upon  an  income 
basis,  the  principles  under  which  so  much  of  the  indebtedness 
evidenced  by  such  securities  as  was  secured  by  mortgage  of 
taxable  real  estate  was  exempted  were  retained  in  force.5 

Determination  of  Value  of  Mortgage  Interest 

Section  13.  If  the  holder  of  such  mortgage  fails  to  file  in  the 
assessors'  office  a  sworn  statement  of  all  his  estate  liable  to  taxation 
under  the  preceding  section,  including  a  statement  of  the  full  amount 
remaining  unpaid  upon  such  mortgage  and  of  his  interest  therein, 
the  amount  stated  in  the  mortgage  shall  be  conclusive  as  to  the  extent 
of  such  interest;  but  his  interest  in  such  real  estate  shall  not  be 
assessed  at  a  greater  sum  than  the  fair  cash  valuation  of  the  land 
and  the  structures  thereon  or  affixed  thereto;  and  the  amount  of  a 
mortgage  interest  in  an  estate  divided  after  the  creation  of  such  mort- 
gage need  not  be  apportioned  upon  the  several  parts  of  such  estate, 
except  as  provided  in  sections  seventy-nine  to  eighty-one,  inclusive. 
Whenever,  in  any  case  of  mortgaged  real  estate,  such  statement  is 
not  brought  in,  no  tax  on  such  real  estate  for  the  year  then  current 
shall  be  invalidated  for  the  reason  that  a  mortgagee's  interest  therein 
has  not  been  assessed  to  him. 

The  provisions  of  this  and  the  preceding  and  the  subsequent 
sections  were  first  enacted  in  1881 x  for  the  purpose  of  abolishing 
what  it  was  contended  by  some  was  a  certain  kind  of  double 

2  Knight  v.  Boston,  159  Mass.  551   (1893). 

3  Brooks  v.  West  Springfield,   193   Mass.   190   (1906). 

4  Sweetser  v.  Manning,  200  Mass.  378   (1909). 

5  G.  L.  c.  62,  §  1,  subsection  (a),  clause  third,  injra  page  440. 
1  St.  1881,  c.  304. 


232  Taxation   in   Massachusetts 

[G.  L.  c.  59,  §  14 

taxation,  in  assessing  mortgaged  real  estate  at  its  full  value  and 
the  mortgage  debt  as  personal  property  as  well.2  In  1882  how- 
ever it  was  provided  that  such  mortgagor  and  mortgagee  might 
bring  in  to  the  assessors  a  sworn  statement  respecting  their  in- 
terest in  the  real  estate,  and  that  if  none  was  brought  in  the 
tax  should  not  be  invalidated  for  the  reason  that  the  mort- 
gagee's interest  therein  had  not  been  assessed  to  him.3  Since 
the  enactment  of  this  last  mentioned  statute  the  provisions  of 
the  three  sections  now  under  consideration  have  been  rarely- 
regarded  by  the  assessors  and  the  result  intended  by  them  has 
been  practically  reached  by  the  failure  on  the  part  of  the  asses- 
sors to  assess  to  the  mortgagee  either  as  real  or  personal  property 
the  sum  represented  by  the  mortgage.4 

Ownership  of  Mortgaged  Property  for  Purposes  of 

Taxation 

Section  14.  Mortgagors  and  mortgagees  referred  to  in  the  two 
preceding  sections  shall  for  the  purpose  of  taxation  be  deemed  joint 
owners  until  the  mortgagee  takes  possession ;  and  until  such  possession 
is  taken  by  a  first  mortgagee,  an  assessor  or  the  collector  of  taxes, 
upon  application,  shall  give  to  any  such  mortgagee  or  mortgagor  a 
tax  bill  showing  the  whole  tax  on  the  mortgaged  estate  and  the  amount 
included  in  the  valuation  thereof  as  the  interest  of  each  mortgagee 
and  of  the  mortgagor  respectively.  If  the  first  mortgagee  is  in  pos- 
session, he  shall  be  deemed  sole  owner;  and  any  other  mortgagee  in 
possession  shall  be  deemed  joint  owner  with  prior  mortgagees. 

Unless  either  the  mortgagor  or  the  mortgagee  complied  with 
the  statutory  provision  made  for  their  benefit x  they  need  not 
"  be  deemed  joint  owners  "  and  a  tax  otherwise  lawfully  assessed 
is  not  invalid  because  the  mortgagee  is  not  recognized  in  the 
assessment.2 

2  Supra,  Part  1,  §  §   33,  53. 

3  St.  1882,  c.  175,  now  G.  L.  c.  59.  §  34,  infra  page  263.  See  also  Abbott 
v.  Frost,  185  Mass.  398  (1904);  Sullivan  v.  Boston,  198  Mass.  119  (1908). 

4  Worcester  v.  Boston,  179  Mass.  41  (1901). 

1  G.  L.  c.  59,  §  34,  infra  page  263. 

2  Abbott  v.  Frost,  185  Mass.  398  (1904). 


Assessment  of  Local  Taxes  233 

G.  L.  c.  59,  §  15] 

Obligation  to  Pay  Taxes  as  Between  Landlord  and 

Tenant 

Section  15.  If  a  tenant  paying  rent  for  real  estate  is  taxed 
therefor,  he  may  retain  out  of  his  rent  the  taxes  paid  by  him,  or  may 
recover  the  same  in  an  action  against  his  landlord,  unless  there  is  a 
different  agreement  between  them. 

As  taxes  on  real  estate  may  be  assessed  to  either  the  owner 
or  the  occupant,  the  primary  incidence  of  the  burden  of  tax- 
ation as  between  landlord  and  tenant  lies  in  the  discretion 
of  the  assessors,  although  in  the  absence  of  statute  the  burden 
of  the  tax  would  fall  upon  the  owner  so  far  as  he  had  not  guarded 
himself  by  the  terms  of  the  lease.1  In  the  periodic  tax  acts  of 
the  provincial  period  and  of  the  first  decades  after  independence 
was  established  and  in  the  Revised  Statutes  of  1836  it  was  pro- 
vided that  in  the  absence  of  contract  between  landlord  and  ten- 
ant specifically  covering  the  matter  of  taxes,  the  taxes  should 
be  paid  by  both  parties  in  equal  portions,  but  in  the  General 
Statutes  the  whole  burden  was  put  upon  the  landlord  and  has 
there  remained.  The  statute  does  not  apply  if  there  is  a  different 
arrangement,  and  the  existence  of  a  "  different  arrangement " 
may  be  shown  by  the  acquiescence  of  the  parties  or  implied  from 
the  provisions  of  the  lease  taken  as  a  whole.2 

Ordinarily  when  a  lease  of  any  importance  is  entered  into 
the  parties  make  specific  provision  for  the  payment  of  taxes 
by  either  the  lessor  or  the  lessee.  If  the  lessee  covenants  to  pay 
the  taxes  assessed  in  respect  of  the  premises  or  payable  in  re- 
spect of  the  premises  during  the  term,  he  is  liable  for  the  whole 
of  the  tax  assessed  as  of  April  first  although  his  term  may  expire 

1  Walker  v.  Whittemore,  112  Mass.  187,  189,  (1873);  Boston  Molasses  Co. 
v.  Commonwealth,  193  Mass.  387,  391  (1907). 

2  In  Derumple  v.  Clark,  Quincy  38  (1763),  it  was  held  that  when  it  appeared 
that  a  tenant  had  paid  the  taxes  for  five  years  and  had  not  deducted  them  from 
the  rent  and  that  it  was  the  custom  of  the  town  that  the  tenant  pay  the  taxes, 
there  was  sufficient  evidence  of  a  contract  to  that  effect. 

In  Phinney  v.Foster,  189  Mass.  182  (1905),  it  appeared  that  the  plaintiff  leased 
certain  land  to  defendant.  It  was  provided  in  the  lease  that  defendant  might 
erect  buildings  thereon  which  were  to  remain  his  property,  and  plaintiff  was 
to  pay  all  taxes  on  the  "premises."  A  tax  was  assessed  on  land  and  buildings 
which  plaintiff  was  obliged  to  pay  to  prevent  a  sale.  It  was  held  that  he  might 
recover  that  portion  of  the  tax  which  was  assessed  upon  the  buildings.  "Premises" 
included  the  land  only  and  the  provision  of  the  lease  was  restrictive  of  the 
lessor's  general  obligation.  The  lease  taken  as  a  whole  showed  a  "different 
agreement"  within  the  meaning  of  the  statute. 


234  Taxation   in   Massachusetts 

[G.L.c.  59,  §15 

soon  after  that  day,3  and  the  rule  is  the  same  if  the  lease  is 
terminated  at  the  election  of  the  lessor  on  account  of  the  total 
destruction  of  the  building  by  fire.4  The  lessee  in  such  a  case 
is  not  entitled  to  any  apportionment  of  the  tax  for  the  current 
year,  notwithstanding  a  provision  in  the  lease  that  the  rent 
shall  be  suspended  or  apportioned  if  the  building  is  destroyed.5 

When  part  of  an  estate  is  leased  and  the  lessee  covenants 
to  pay  the  taxes  thereon,  he  is  bound  to  pay  a  proportional  part 
of  the  taxes  assessed  on  the  entire  estate,  although  the  assessors 
never  apportioned  the  tax  upon  the  different  portions  of  the 
estate  and  were  never  requested  by  the  owner  to  make  such 
apportionment.6  When  the  whole  estate  is  leased  to  different 
tenants,  the  lessor  may  prove  a  usage  of  the  city  in  which  the 
land  is  situated  to  apportion  taxes  among  the  different  tenants 
in  the  building  according  to  the  amount  of  rent  paid  by  each.7 

If  a  lessee  who  has  covenanted  to  pay  taxes  assigns  the  lease, 
the  lessor  can  hold  the  original  lessee  to  the  covenant  by  reason 
of  privity  of  contract,  and  so  long  as  the  assignee  of  the  lease 
remains  in  possession  of  the  property  he  can  also  be  held  on  the 
covenant  by  the  lessor,  by  reason  of  privity  of  estate.  If  the 
lessor  compels  the  original  lessee  to  pay  the  tax,  the  ultimate 
liability  can  be  thrown  by  the  lessee  upon  the  assignee  or  re- 
assignee  who  is  in  possession  of  the  property  on  the  day  as  of 
which  the  tax  was  assessed.8  The  obligation  to  pay  taxes  does 
not  however  run  with  the  land  unless  there  has  been  an  assign- 
ment of  the  lessee's  entire  interest  in  the  property.0 

A  covenant  by  a  lessee  to  pay  taxes  is  not  a  covenant  of 
indemnity,  and  if  the  lessee  does  not  pay  the  tax,  the  lessor  may 

3  Wilkinson  v.  Libbey,  1  Allen  375  (1861) ;  Amory  v.  Melvin,  112  Mass.  83 
(1873);  Baker  v.  Horan,  227  Mass.  415  (1917).  This  rule  applies  although  by 
reason  of  a  change  in  the  tax  day  the  lessee  is  obliged  to  pay  taxes  for  more 
years  than  are  included  in  his  term.  Welch  v.  Phillips,  224  Mass.  267  (1916). 
An  agreement  by  the  lessee  to  pay  the  "annually  recurring  municipal  tax" 
includes  all  taxes  collected  by  the  municipal  tax  collector,  whether  for  the 
purposes  of  the  state,  the  county  or  the  municipality.  Boston  Fish  Market 
Corporation  v.  Boston,  224  Mass.  31    (1916). 

4  Wood  v.  Bogle,  115  Mass.  30  (1874)  ;  Sargent  v.  Pray,  117  Mass.  267 
(1875);  Carnes  v.  Hersey,  117  Mass.  269  (1875).  See  also  Paul  v.  Chickering, 
117  Mass.  265  (1875). 

5  Minot  v.  Joy,  118  Mass.  308  (1875). 

6  Wall  v.  Hinds,  4  Gray  256   (1855). 

7  Codman  v.  Hall,  9  Allen  335  (1864);  Amory  v.  Melvin,  112  Mass.  83 
(1873). 

s  Mason  v.  Smith,  131  Mass.  510  (1881). 

8  Dunlap  v.  Bullard,  131  Mass.  161  (1881). 


Assessment  of  Local  Taxes  235 

G  L.c.  59,  §15] 

recover  the  amount  of  the  tax  with  interest  without  showing 
that  he  has  paid  the  tax  himself  or  redeeemed  the  property  from 
a  sale  for  non-payment  thereof,1.0  but  he  cannot,  it  has  been 
held,  recover  the  additional  costs  and  expenses  he  has  been  put 
to  by  the  lessee's  breach  of  covenant.11 

If  it  is  provided  in  a  lease  that  the  lessee  may  erect  buildings 
upon  the  demised  premises,  and  that  such  buildings  shall  not 
become  real  estate  and  shall  belong  to  the  lessee,  although  the 
contract  is  binding  upon  the  parties,  the  buildings  are  never- 
theless taxable  only  as  real  estate  and  in  connection  with  the 
land  upon  which  they  stand,12  and  the  whole  premises  may  be 
taxed  to  either  the  owner  or  the  occupant.  If  under  such  cir- 
cumstances the  lessee  is  bound  to  pay  the  tax  on  the  buildings 
and  does  not  pay  it,  the  lessor  can  protect  his  property  only 
by  paying  the  entire  tax  or  buying  in  the  property  at  the  tax 
sale.  If  he  pays  the  tax  he  is  entitled  to  recover  from  the  lessee 
what  the  latter  should  have  paid,13  and  if  he  buys  in  the  property 
he  is  entitled  to  retain  possession  of  the  buildings,  at  least  until 
they  are  redeemed  by  the  lessee  in  the  manner  provided  by  law.14 
If  the  lessee  agrees  to  pay  the  tax  on  the  buildings  and  is  assessed 
as  occupant  for  land  and  buildings  he  can  recover  from  the 
lessor  the  amount  of  the  tax  on  the  land.15 

LIFE-TENANT   AND   REMAINDERMAN 

It  is  well  established  that  when  real  property  is  held  by  one 
for  life  with  remainder  to  others  in  fee,  or  when  real  or  personal 
property  is  held  in  trust,  the  income  to  be  paid  to  certain  bene- 
ficiaries for  life  or  other  term  and  the  principal  to  be  paid  to 
others  at  the  conclusion  of  the  term,  the  annual  taxes  upon  the 
property  are  to  be  paid  by  the  life-tenant,  or,  in  the  case  of 
trust  property,  from  the  income,  without  any  right  of  reimburse- 
ment from  the  remainderman  or  from  the  principal  of  the  trust 

10  Sargent  v.  Pray,  117  Mass.  267  (1875) ;  Richardson  v.  Gordon,  188 
Mass.  279  (1905). 

11  Sargent  v.  Pray,  117  Mass.  267  (1875).  See  also  the  following  decisions 
on  peculiar  facts  relating  to  agreements  betwen  lessor  and  lessee  in  regard  to 
the  payment  of  taxes:  Bowditch  v.  Chickering,  139  Mass.  283  (1885);  Stimson  v. 
Crosby,  180  Mass.  296  (1902). 

12  G.  L.  c.  59,  §  3,  supra  page  190. 

13  Phinney  v.  Foster,  189  Mass.  182  (1905),  supra,  note  2. 

14  Milligan  v.  Drury.  130  Mass.  428  (1881). 

15  Boston  Molasses  Co.  v.  Commonwealth,  193  Mass.  387  (1907), 


236  Taxation   in   Massachusetts 

[G.  L.  c.  59,  §§  16, 17 
fund.16  Even  when  a  person  entitled  to  the  income  dies  shortly 
after  the  day  as  of  which  the  tax  is  assessed,  the  tax  for  the 
ensuing  year  is  wholly  chargeable  upon  his  income.17 

Ordinarily,  from  the  necessity  of  the  case,  a  tax  on  vacant 
land  must  be  paid  from  principal.  When  however  the  trust 
property  consists  of  several  parcels  of  real  estate,  and  the  taxes 
and  other  current  expenses  of  one  of  the  parcels  exceed  the  in- 
come therefrom,  but  the  property  as  a  whole  produces  a  net 
income,  the  tax  upon  the  unprofitable  parcel  should  be  paid  from 
the  general  income  of  the  trust  estate.18  On  the  other  hand, 
when  a  trustee  forecloses  a  mortgage  and  sells  the  mortgaged 
land  and  is  obliged  to  pay  off  several  years'  unpaid  taxes  before 
making  the  sale,  the  money  so  paid  enures  to  the  permanent 
benefit  of  the  estate,  and  should  be  deducted  from  the  principal 


19 


Real  Estate  of  a  Deceased  Person 

Section  16.  The  undivided  real  estate  of  a  deceased  person  may 
be  assessed  to  his  heirs  or  devisees,  without  designating  any  of  them 
by  name,  until  they  have  given  notice  to  the  assessors  of  the  division 
of  the  estate  and  of  the  names  of  the  several  heirs  or  devisees;  and 
each  heir  or  devisee  shall  be  liable  for  the  whole  of  such  tax,  and  when 
paid  by  him  he  may  recover  of  the  other  heirs  or  devisees  their  re- 
spective proportions  'thereof. 

Section  17.  The  real  estate  of  a  person  deceased,  the  right  or 
title  to  which  is  doubtful  or  unascertained  by  reason  of  litigation 
concerning  the  will  of  the  deceased  or  the  validity  thereof,  may  be 
assessed  in  general  terms  to  his  estate,  and  said  tax  shall  constitute 
a  lien  upon  the  land  so  assessed  and  may  be  enforced  by  sale  of  the 
same  or  a  part  thereof,  as  provided  for  enforcing  other  liens  for  taxes 
on  real  estate. 

It  was  held  in  1889  that  a  tax  could  not  be  assessed  to  a  per- 
son who  was  in  fact  deceased  although  there  was  no  record  in 

16  Watts  v.  Howard,  7  Met.  478,  482  (1844) ;  Holmes  v.  Taber,  9  Allen  246 
(1864) ;  Plympton  v.  Boston  Dispensary,  106  Mass.  544  (1871) ;  Bridge  v.  Bridge, 
146  Mass.  373   (1888);  Jordan  v.  Jordan,  192   Mass.  337   (1906). 

"  Holmes  v.  Taber,  9  Allen  246  (1864).  See  Reams  v.  Cunniff,  138  Mass. 
434  (1885),  holding  that  a  judgment  of  the  probate  court  made  after  May  1. 
confirming  the  report  of  commissioners  filed  before  that  date  assigning  a  parcel 
of  land  to  a  widow  for  life  in  lieu  of  dower,  does  not  relate  back  to  the  date  of 
the  assignment  so  as  to  make  her  liable  to  the  remainderman  for  the  taxes  of 
that  year  paid  by  him. 

18  Jordan  v.  Jordan,  192  Mass.  337  (1906). 

19  Stone  v.  Littlefield,  151  Mass.  485  (1890). 


Assessment  of  Local  Taxes  237 

G.  L.  c.  59,  §  18] 

this  commonwealth  of  his  death;1  but  a  statute  was  immediately 
enacted  permitting  the  assessment  to  the  owner  of  record  even 
if  deceased.2 

When  it  appears  of  record  that  the  real  estate  of  a  deceased 
person  has  become  vested  in  devisees  who  are  not  his  heirs  under 
a  will  duly  probated  and  allowed,  the  tax  could  not  be  lawfully 
assessed  to  the  "  heirs  "  of  the  deceased.3 

Where  and  to  Whom  Personal  Property  is  Assessed 

Section  18.  All  taxable  personal  estate  within  or  without  the 
commonwealth  shall  be  assessed  to  the  owner  in  the  town  where  he  is 
an  inhabitant  on  April  first,  except  as  provided  in  chapter  sixty -three 
and  in  the  following  clauses  of  this  section: 

A  certain  date  in  each  year,  formerly  May  first,  now  April 
first,  is  fixed  as  the  date  for  the  valuation  of  the  property  of 
persons,  partnerships  and  corporations  liable  to  local  taxation.1 
The  questions  of  ownership,  of  exemption,  of  occupancy,  and  of 
domicile  all  relate  to  the  date  when  the  status  of  the  property 
is  ascertained  for  the  current  year.  The  assessment,  of  course, 
may  be  made  at  a  later  date,  but  it  must  be  levied  on  the  person 
who  was  owner  or  occupant  on  April  first.2 

In  deciding  who  is  the  owner  of  personal  property  the  court 
is  not  bound  by  the  disclaimer  of  a  person  alleged  to  be  the 
owner,  but  may  infer  that  his  control  over  the  property  as  shown 
by  his  actions  constitutes  ownership  for  purposes  of  taxation.3 

The  principle  that  all  taxable  personal  estate  of  inhabitants 
of  the  commonwealth  should  be  assessed  to  the  owner  in  the 
town  of  which  he  was  an  inhabitant,  in  accordance  with  the 
doctrine  of  mobilia  sequuntur  personam,  was  established  at  the 
first  settlement  of  the  colony,  and  has  never  been  repealed ;  but 
the  statute  which  still  so  boldly  asserts  the  principle  has  been 
shorn  of  substantially  all  its  force  and  effect  and  is  now  but  an 
empty  shell.     Tangible  personal  property  situated  outside  the 

1  Sawyer  v.  Mackie,  149  Mass.  269  (1889). 

2  See  G.  L.  c.  59,  §  11,  supra  page  226. 

3  Tobin  v.  Gillespie,  152  Mass.  219  (1890). 

1  The  date  of  valuation  was  changed  from  April  1  to  May  1  by  St.  1909, 
c.  440.  This  statute  was  inadvertently  repealed  by  St.  1913!  c  835,  §  503; 
but  by  St.  1914,  c.  198,  §  §  1,  2,  it  was  again  provided  that  April  1  should  be  the 
tax  day. 

2  J.  L.  Hammett  Co.  v.  Alfred  Peats  Co.,  217  Mass.  520  (1914). 

3  Raymond  v.  Worcester,  172  Mass.  205   (1898). 


238  Taxation  in   Massachusetts 

[G.L.c.  59,  §18 
state  this  commonwealth  now  has  no  power  to  tax;4  tangible 
personal  property  situated  within  the  commonwealth  (except 
ships  and  vessels)  is  now  taxed  in  the  town  where  it  is  situated;5 
intangible  personal  property  has  been  gradually  withdrawn  from 
the  scope  of  local  taxation.  The  only  application  of  the  statute 
set  forth  at  the  head  of  this  section  at  the  present  time  is  to 
ships  and  vessels  not  engaged  in  the  foreign  or  interstate  carry- 
ing trade,  to  taxable  intangible  property  yielding  income  which 
the  owner  has  failed  to  return  to  the  income  tax  officials 6  and 
to  the  distribution  of  the  tax  on  national  bank  stock.7 

Prior  to  1918,  and  while  the  domicile  of  the  owner  continued 
to  be  the  determining  factor  in  the  place  of  taxation  of  personal 
property,  there  were  special  provisions  of  statute  regulating 
the  place  of  taxation  of  personal  property  of  persons  under 
guardianship  and  personal  property  held  in  trust,  such  property 
being  made  taxable  at  the  domicile  of  the  ward  or  of  the  bene- 
ficiary, unless  his  domicile  was  outside  the  state,  in  which  case 
it  was  taxable  at  the  domicile  of  the  guardian  or  trustee.8  The 
enactment  of  the  income  tax  act  deprived  these  provisions  of 
much  of  their  importance,9  and  in  1918,  when  physical  location 
was  made  the  test  of  the  taxing  situs  of  tangible  personal  prop- 
erty, these  statutes  were  repealed,10  and  tangible  personal  prop- 
erty belonging  to  persons  under  guardianship  or  held  in  trust 
became  subject  to  the  provisions  of  law  applicable  to  the  taxation 
of  tangible  personal  property  generally,  and  is  taxable  in  the 
place  where  it  is  situated  on  the  first  day  of  April  unless  it  falls 
within  one  of  the  provisions  of  section  eighteen  requiring  its 
taxation  elsewhere. 

With  reference  to  the  person  to  whom  such  property  is  to 
be  assessed,  a  distinction  is  to  be  noted  between  guardians  and 
trustees.  A  trustee  is  the  legal  owner  of  the  trust  property,  and 
there  is  no  difficulty  in  assessing  him  as  such.11    In  the  case  of 

*  Supra,  Part  I,   §  43. 

5  G.  L.  c.  59,  §  18,  cl.  1,  infra  page  239. 

6  G.  L.  c.  62,  §  49,  infra  page  500. 

»  G.  L.  c.  63,  §  §  5-7  inc.,  infra  page  513. 

8  St.  1909,  c.  490,  Part  I,  §  23,  clauses  4,  5,  6  and  §  24.  See  the  first 
edition  of  this  work,  pages  235  to  240  inc. 

9  See  G.  L.  c.  59,  §  5,  cl.  33,  supra  page  215,  by  which  intangible  personal 
property  held  by  any  fiduciary  in  this  commonwealth  is  exempted  from  direct 
taxation. 

io  St.   1918,   c.  129. 

11  Gray  v.  Lenox,  215  Mass.  598  (1913);  Welch  v.  Boston,  221  Mass.  155 
(1915). 


Assessment  of  Local  Taxes  239 

G.  L.  c.  59,  §  18,  CI.  1]. 

a  person  under  guardianship,  on  the  other  hand,  the  legal  title 
to  the  property  is  in  the  ward  and  not  in  the  guardian,12  and 
the  property  should  be  assessed  to  the  ward.13  There  is  now 
no  provision  in  the  statutes  for  the  assessment  of  personal  prop- 
erty (other  than  machinery  and  personal  property  leased  for 
profit)  to  the  person  in  possession  or  control. 

A  trustee  in  bankruptcy,  or  a  trustee  under  a  voluntary 
assignment  for  the  benefit  of  creditors,  may  be  taxed  for  the 
goods  of  the  bankrupt  or  the  assignor  in  his  hands;  for  title 
passes  to  such  a  trustee  or  assignee  and  he  may  be  taxed  as  owner  ; 
and  the  fact  that  a  trustee  in  bankruptcy  was  appointed  by  a 
court  of  the  United  States  does  not  exempt  him  from  taxation 
by  authority  of  a  state;14  but  a  receiver  of  a  corporation  ap- 
pointed by  a  court  is  not  taxable  for  the  goods  of  the  corpora- 
tion in  his  hands  unless  an  assignment  has  been  executed  for 
the  purpose  of  making  him  an  owner.15 

Tangible  Personal  Property 

First,  All  tangible  personal  property,  including  that  of  persons 
not  inhabitants  of  the  commonwealth,  except  ships  and  vessels,  shall, 
unless  exempted  by  section  five,  be  taxed  to  the  owner  in  the  town 

where  it  is  situated  on  April  first. 

This  statute  marks  the  final  step  in  the  change  of  the  prin- 
ciple of  situs  in  taxing  tangible  personal  property  from  the  old 
rule  of  mobilia  sequuntur  personam  by  which  the  situs  of  all 
personal  property  was  deemed  to  be  at  the  domicile  of  the 
owner  to  the  present  practice  of  basing  situs  almost  wholly  on 
the  physical  location  of  the  property. 

The  original  rule  was  that  every  person  was  to  be  assessed 
for  his  personal  property  in  the  town  of  which  he  was  an  inhab- 
itant. It  soon  however  became  the  subject  of  complaint  in 
Boston  and  other  commercial  towns  that  many  wealthy  inhab- 
itants removed  into  towns  in  the  vicinity,  although  they  contin- 
ued their  business  in  the  town  of  their  former  residence,  and 

12  Granby  v.  Amherst,  7  Mass.  1  (1810);  Manson  v.  Felton,  13  Pick.  206 
(1832). 

13  In  Payson  v.  Tufts,  13  Mass.  493  (1816)  it  was  held  that  personal 
property  of  a  ward  might  be  assessed  to  the  guardian ;  but  at  that  time  a  person 
might  be  taxed  for  personal  property  in  his  possession. 

14  Supra,  Part  1,  §28. 

15  City  National  Bank  v.  Charles  Baker  Co.,  180  Mass.  40  (1901). 


240  Taxation  in   Massachusetts 

[G.  L.  c.  59,  §  18,  CI.  1 
the  town  in  which  the  business  was  carried  on,  although  it  fur- 
nished protection  to  the  business,  derived  no  taxes  therefrom.1 
This  injustice  was  remedied  in  1742  in  the  annual  tax  act  of 
that  year  by  providing  that  goods,  wares  and  merchandise  and 
other  stock  in  trade  belonging  to  merchants,  traders  or  factors 
should  be  taxed  in  the  town  in  which  the  business  of  the  owner 
was  carried  on.2  In  1753  the  requirement  was  added  that  the 
owner  must  maintain  a  store,  shop  or  wharf  in  order  to  justify 
the  taxation  of  his  goods  in  a  town  other  than  that  of  his  dom- 
icile. These  provisions  were  continued  in  the  annual  tax  acts 
without  change  for  many  years.3  In  1814  stock  employed  in 
manufactories  was  also  made  taxable  where  it  was  located,4  and 
with  some  minor  changes  the  statute  remained  in  force  until 
the  more  comprehensive  provisions  of  the  1918  statute  rendered 
it  no  longer  necessary. 

In  1821  it  was  provided  that  horses  and  cattle  should  be 
taxed  in  the  town  where  they  were  kept  throughout  the  year 
rather  than  at  the  domicile  of  the  owner;5  and  in  1830  provision 
was  made  for  the  taxation  of  machinery  employed  in  manu- 
facture in  the  town  in  which  the  manufacturing  was  carried 
on. 6  In  1903  the  merchandise  of  foreign  corporations  was  made 
taxable  where  it  was  situated,7  and  in  1909  the  same  rule  was 
applied  to  merchandise,  machinery  and  animals  of  individuals 
not  resident  in  the  commonwealth.8  Finally  in  1918  the  present 
statute  was  enacted,  and  all  tangible  personal  property  made 
taxable  where  it  was  situated  on  the  first  day  of  April  in  each 
year.9 

It  is  not  however  to  be  supposed  that  property  is  to  be  deemed 

1  Araesbury  etc.  Mfg.  Co.  v.  Amesbury,  17  Mass.  461   (1821). 

2  St.  1742-3,  c.  31,  §  8. 
s  St.  1753-4,  c.  10,  §8. 

4  See  Amesbury  etc.  Mfg.  Co.  v.  Amesbury,  17  Mass.  461  (1821);  Hittinger 
v.  Westford,  135  Mass.  258  (1883);  Boston  Loan  Co.  v.  Boston.  137  Mass.  332 
(1884).  For  the  interpretation  of  the  statute  in  detail  see  the  first  edition 
of  this  work,  pages  225  to  230  inc. 

5  St.  1821.  c.  107,  §3;  and  see  Hicks  v.  Westport,  130  Mass.  478  (1881); 
Pierce  v.  Eddy,  152  Mass.  494  (1891). 

6  See  G.  L.  c.  59,  §  18,  cl.  2,  infra  page  241. 

7  St.  1903,  c.  437,  §71;  and  see  Tobey  v.  Kip,  214  Mass.  477  (1913); 
Sullivan  v.  Ashfield,  227  Mass.  24  (1917) ;  Atlantic  Maritime  Co.  v.  Gloucester, 
228  Mass.  519  (1917) ;  Collector  of  Boston  v.  Rising  Sun  Street  Lighting  Co.,  229 
Mass.  494  (1918). 

8  St.  1909,  c.  516,   §2. 

9  St.  1918,  c.  129,  §  1. 


Assessment  of  Local  Taxes  241 

G.  L.  c.  59,  §  18,  CI.  2] 

to  be  situated  in  a  town  within  the  meaning  of  the  statute  merely 
because  it  is  within  the  town  for  a  temporary  purpose  on  the  first 
day  of  April,  and  property  is  undoubtedly  taxable  in  the  town 
where  it  is  ordinarily  kept,  rather  than  where  it  happens  to  be 
on  the  taxing  day. 


10 


Machinery  and  Personal  Property  Leased  for  Profit 

Second,  Machinery  employed  in  any  branch  of  manufacture,  or 
in  supplying  or  distributing  water,  including  machines  used  or  oper- 
ated under  a  stipulation  providing  for  the  payment  of  a  royalty  or 
compensation  in  the  nature  of  a  royalty  for  the  privilege  of  using  or 
operating  the  same,  and  all  tangible  personal  property  within  the 
commonwealth  leased  for  profit,  shall  be  assessed  where  such  machin- 
ery or  tangible  personal  property  is  situated,  to  the  owner  or  any 
person  having  possession  of  the  same  on  April  first. 

This  statute,  originating  in  1830,1  remained  in  much  the 
same  form  until  1887,  providing  simply  that  machinery  em- 
ployed in  any  branch  of  manufacture  should  be  assessed  where 
located  to  the  owner  in  possession  on  the  taxing  day.  In  1887 
the  provision  as  to  royalty  was  added  2  and  in  1889  the  pro- 
vision as  to  personal  property  leased  for  profit.3  The  statute 
of  1918  making  all  tangible  property  taxable  where  located4 
deprived  this  statute  of  much  of  its  importance;  as  applied  to 
individuals  it  differentiates  the  classes  of  property  to  which  it 
relates  from  other  tangible  personal  property  only  by  making 
the  property  to  which  it  relates  taxable  to  the  person  in  posses- 
sion rather  than  to  the  owner,  if  the  assessors  so  elect. 

To  be  taxed  under  this  clause  the  property  must  not  only  be 
machinery  (though  not  necessarily  machinery  affixed  to  the 
buildings)  5  but  it  must  also  be  employed  in  some  branch  of 

10  See  the  following  decisions  under  earlier  statutes.  Hittinger  v.  Boston, 
139  Mass.  17  (1885) ;  Ingram  v.  Cowles,  150  Mass.  155  (1889) ;  Pierce  v.  Eddy, 
152  Mass.  594  (1891);  Atlantic  Maritime  Co.  v.  Gloucester,  228  Mass.  519  (1917). 

i  St.   1830,  c.  151,  §2. 

2  St.  1887,  c.  125. 

3  St.  1889,  c.  446.  In  1894  (St.  1894,  c.  304)  a  provision  was  added  to  enable 
the  town  of  the  owner's  domicile  to  contest  with  the  town  where  the  machinery 
was  located  as  to  its  situs  for  taxation.  This  was  rendered  unnecessary  by 
St.  1918,  c.  129,  making  all  tangible  property  taxable  where  located  and  stricken 
out. 

*  St.  1918,  c.  129,  now  G.  L.  c.  59,  §  18,  cl.  1,  supra  page  239. 
5  Lowell  v.  Middlesex  County  Commissioners,  152  Mass.  372  (1890) ;  Troy 
Cotton  &  Woolen  Manufactory  v.  Fall  River,  167  Mass.  517  (1897).    It  should 


242  Taxation   in    Massachusetts 

[G.L.c.  59,  §18,  CI.  2 

manufactures,  and  machinery  not  so  employed  is  not  taxable 
under  this  clause.6  Furthermore  it  must  be  employed  in  an 
established  place  of  business,  and  not  be  merely  portable  prop- 
erty moving  from  place  to  place.7 

This  clause  is  still  of  great  importance  in  connection  with 
the  taxation  of  corporations.  It  was  provided  in  1832  that  all 
machinery  employed  in  manufacture  and  belonging  to  any  cor- 
poration or  person  should  be  assessed  where  situated,  and  that 
in  assessing  the  shares  of  a  manufacturing  corporation  the  value 
of  the  machinery  locally  taxed  should  be  deducted.8  This  last 
provision  is  still  in  force  in  respect  to  the  corporate  franchise 
tax,9  and  although  the  statutes  do  not  now  in  terms  require  the 
local  assessment  of  the  machinery  of  a  domestic  corporation, 
it  is  well  settled  by  long  practice  and  plain  implication  that  the 
clause  now  under  consideration,  so  far  as  it  relates  to  machinery, 
unlike  the  other  clauses  of  this  section,  applies  to  domestic  cor- 
porations; and  the  land,  buildings  and  machinery  of  mills  and 
factories  are  valued  for  taxation  in  the  same  manner  whether 
the  owner  is  a  natural  person  or  a  corporation.10 

Where  the  whole  manufacturing  plant  of  land,  buildings 
and  machinery  belonging  to  one  corporation  and  locally  taxable 
is  of  more  value  if  kept  together  and  used  for  mill  purposes 
than  if  the  machinery  is  removed  from  the  buildings  or  if  the 
buildings  and  machinery  are  removed  from  the  land,  each  of  these 
items  should  be  valued  for  taxation  as  it  is  used  in  connection 


be  remembered  that  machinery  is  taxable  as  personal  property  even  if  affixed 
to  the  building  so  as  to  constitute  real  estate  as  between  vendor  and  vendee. 
G.  L.  c.  59,  §  3,  supra  page  190. 

6  Machinery  employed  in  manufacture  does  not  include  pipes  and  mains  for 
distributing  water,  Dudley  v.  Jamaica  Pond  Aqueduct  Co.,  100  Mass.  183  (1868); 
Coffin  v.  Artesian  Water  Co.,  193  Mass.  274  (1906),  machinery  used  in  cutting 
ice,  Hittinger  v.  Westford,  135  Mass.  258  (1883),  or  in  quarrying  and  breaking 
stone,  Wellington  v.  Belmont,  164  Mass.  142  (1895),  or  in  printing  a  news- 
paper, Barron  v.  Boston,  187  Mass.  168  (1905).  It  does  include  mains,  pipes  and 
meters  used  in  distributing  gas,  Commonwealth  v.  Lowell  Gas  Light  Co.,  12 
Allen  75  (1866) ;  and  since  the  enactment  of  St.  1907,  c.  329,  the  machinery 
of  water  companies  has  been  specifically  made  subject  to  local  taxation. 

7  Ingram  v.  Cowles,  150  Mass.  155  (1889). 

8  Infra  pages  531,  539. 

9  G.  L.  c.  63,  §30,  3  (a),  infra  page  539. 

10  Troy  Cotton  &  Woolen  Manufactory  v.  Fall  River,  167  Mass.  517 
(1897).  The  matter  is  not  left  so  wholly  to  implication  by  the  General  Laws 
as  it  was  under  the  statutes  previously  in  force,  as  all  personal  property  of 
domestic  corporations,  except  machinery  employed  in  manufacture,  is  now 
expressly  exempt  from  local  taxation. 


Assessment  of  Local  Taxes  243 

G.L.c.  59,  §18,  CI.  3] 

with  the  others;11  but  the  machinery  should  be  assessed  sep- 
arately from  the  land  and  buildings,  and  the  owner  is  entitled 
to  an  abatement  if  the  land  and  buildings  are  overassessed, 
even  if  the  land,  buildings  and  machinery  taken  together  are 
not.12 

The  provision  as  to  personal  property  leased  for  profit  for- 
merly applied  to  foreign  corporations 13  though  doubtless  not 
under  the  present  law,  as  there  is  no  provision  for  the  deduction 
of  the  value  of  such  property  from  the  corporate  excise  tax. 
Property  must  be  actually  leased  to  come  within  this  portion  of 
the  statute.14 

Personal  Property  of  Deceased  Persons 

Third,  Personal  property  of  deceased  persons,  before. the  appoint- 
ment of  an  executor  or  administrator,  shall  be  assessed  in  general 
terms  to  the  estate  of  the  deceased,  and  the  executor  or  administrator 
subsequently  appointed  shall  be  liable  for  the  tax  so  assessed  as 
though  assessed  to  him. 

Prior  to  the  enactment  of  the  Revised  Statutes  of  1836  there 
was  no  special  provision  for  the  taxation  of  the  personal  prop- 
erty of  deceased  persons,  and  it  was  held  that  a  tax  could  not 
legally  be  assessed  to  a  person  after  his  decease,  but  the  assess- 
ment should  be  made  upon  his  estate  in  the  hands  of  his  next 
of  kin  or  executor  or  administrator  or  whoever  else  might  be  in 
possession  of  it.1  Recognizing  the  difficulties  thus  imposed  upon 
the  assessors,  the  commissioners  on  the  Revised  Statutes  pre- 
pared the  provision  that  was  enacted  therein,  to  the  effect  that 
personal  estate  of  deceased  persons  in  the  hands  of  their  execu- 
tors or  administrators  and  not  distributed  should  be  assessed 
to  the  executor  or  administrator  in  the  town  where  the  deceased 
last  dwelt,  until  the  executor  or  administrator  gave  notice  to 
the  assessors  that  the  estate  had  been  distributed.  In  1849  it 
was  questioned  by  the  court  whether  the  estate  of  a  deceased 
person  could  be  assessed  to  a  person  named  as  executor  in  the" 
will  before  the  will  had  been  admitted  to  probate  even  if  it  was 

11  Troy  Cotton  &  Woolen  Manufactory  v.  Fall  River,  167  Mass.  517  (1897). 

12  Hamilton  Mfg.  Co.  v.  Lowell,  185  Mass.  114  (1904). 

13  Lamson  Consolidated  Store  Service  Co.  v.  Boston,  170  Mass.  355  (1898). 

14  Rising  Sun   Street  Lighting   Co.  v.  Boston,   181    Mass.   211    (1902). 

1  Cook- v.  Leland,  5  Pick.  236  (1827). 

2  Smith  v.  Northampton  Bank,  4  Cush.   1   (1849). 


244  Taxation   in    Massachusetts 

[G.L.c.  59,  §18,  CI.  3 
subsequently  admitted  and  the  executor  duly  confirmed,2  and 
in  1852  it  was  provided  by  statute  that  the  estate  in  the  hands 
of  an  executor  or  administrator  should  be  liable  for  taxes  assessed 
upon  the  personal  estate  of  a  deceased  person  before  the  appoint- 
ment of  such  executor  or  administrator.3  The  General  Statutes 
consolidated  the  pertinent  clause  of  the  Revised  Statutes  and 
the  statute  of  1852  omitting  the  words  "  in  the  hands  of  their 
executors  or  administrators  and  not  distributed.  "  The  next 
change  occurred  in  1878  when  it  was  provided  that  the  personal 
property  held  by  an  executor  or  administrator  should  be  taxable 
to  him  for  three  years  after  his  appointment,  unless  the  same 
had  been  distributed  and  notice  of  such  distribution  given  to 
the  assessors,  stating  the  names  and  residences  of  and  the  amounts 
paid  to  the  several  parties  interested  and  resident  in  this  state,4 
and  furthermore  that  after  personal  property  had  been  assessed 
to  an  executor,  administrator  or  trustee,  an  amount  not  Iqss  than 
that  for  which  he  was  last  assessed  should  be  deemed  to  be  the 
amount  for  which  he  was  assessable  unless  a  true  list  of  his  tax- 
able property  was  brought  in.5  In  1912  it  was  provided  that 
the  notice  of  distribution  should  be  under  oath,  and  that  after 
notice  of  final  distribution  had  been  given,  no  list  need  be  filed.6 
During  the  period  between  1878  and  the  enactment  of  the 
income  tax  in  1916  the  assessment  of  the  estates  of  deceased 
persons  usually  amounted  more  to  a  contest  of  wits  between  the 
executors  or  administrators  of  the  deceased  and  the  assessors  of 
the  town  in  which  he  last  dwelt  than  to  an  attempt  in  good 
faith  by  all  parties  to  determine  the  real  amount  of  taxable 
property  belonging  to  the  deceased  or  to  his  estate  on  the  assess- 
ment day.  The  disclosure  incidental  to  proceedings  in  the 
probate  court  not  infrequently  revealed  the  fact  that  persons 
who  had  been  paying  a  very  moderate  amount  of  taxes  left  mil- 
lions of  dollars  in  taxable  intangible  property;  and  the  repre- 
sentatives of  the  deceased  frequently  -  endeavored  to  withhold 
the  real  extent  of  the  estate  so  that  they  could  distribute  the 
property  or  convert  it  into  non-taxable  securities  before  it  could 
be  taxed,  while  on  the  other  hand  the  assessors  often  watched 
eagerly  for  some  failure  on  the  part  of  the  executors  to  comply 

3  St.  1852,  c.  234. 
*  St.  1878,  c.  189,  §  2. 
c  St.  1878,  c.  189,  §  3. 
o  St.  1912,  c.  238,  §  1. 


Assessment  of  Local  Taxes  245 

G.  L.  c.  59,  §  18,  CI.  3] 

with  the  technical  requirements  of  the  tax  laws  which  by  way  of 
penalty  would  leave  the  entire  estate  subject  to  taxation  for 
at  least  one  year.7 

The  enactment  of  the  income  tax  in  1916  and  the  with- 
drawal of  intangible  property  from  local  taxation  ended  this 
unfortunate  condition  of  affairs;  and  in  1918  the  statute  which 
provided  that  tangible  property  should  be  assessed  where  lo- 
cated8 put  a  final  end  to  the  struggles  over  the  taxation  of 
the  estates  of  deceased  persons  so  far  as  local  taxation  was 
concerned.  The  requirement  of  notice  of  distribution  was  re- 
pealed and  the  statute  was  reduced  to  its  present  form,  applicable 
only  to  the  estates  of  deceased  persons  before  the  appointment 
of  an  executor  or  administrator.9  After  the  appointment  of  an 
executor  or  administrator  he  is  taxable  as  owner  under  the 
general  provisions  of  the  tax  laws  in  the  town  in  which  the 
property  is  situated. 

Some  of  the  decisions  under  the  earlier  law  are  still  applic- 
able, in  spite  of  the  change  in  the  statutes.  Personal  property 
of  a  deceased  person  is  taxable  to  the  executor  until  it  is  dis- 
tributed. What  effects  a  distribution  is  a  matter  of  the  substan- 
tive law  of  probate,.and  it  is  held  that  if  adistribution  has  actually 
taken  place,  the  estate  is  no  longer  taxable  to  the  executor  or 
administrator  although  his  accounts  showing  such  distribution 
have  never  been  allowed  by  the  probate  court,  provided  that 
the  executor  or  administrator  and  the  distributees  are  different 
persons  so  that  the  distribution  is  an  actual  rather  than  a  sym- 
bolic act.10  When  however  the  property  of  the  deceased  is 
bequeathed  in  whole  or  in  part  to  trustees  who  are  the  same 
persons  as  the  executors  under  the  will,  it  is  well  settled  that 
no  transmutation  of  the  property  from  the  executors  to  the 
trustees  can  take  place  until  the  accounts  of  the  executors  show- 
ing the  distribution  of  the  property  by  themselves  as  executors 
to  themselves  as  trustees  are  allowed  by  the  probate  court,11 

7  As  to  the  requirements  during  this  period,  see  the  first  edition  of  this 
work,  pages  240  to  247  inc.,  also,  Cody  v.  Spear,  214  Mass.  241  (1913) ;  Sears  v. 
Nahant,  215  Mass.  329  (1913). 

s  St.  1918,  c.  129. 

9  The  special  requirement  that  a  tax  on  an  executor  or  administrator  should 
not  be  less  than  in  the  preceding  year  (supra,  note'  5)  was  also  repealed  in 
1918.     St.  1918,  c.  50,   §1. 

10  Carleton  v.  Ashburnham,  102  Mass.  348  (1869);  Williams  v.  Acton,  219 
Mass.  520  (1914). 

11  Hall  v.  Cushing,  9  Pick.  395,  409  (1830) ;  Conkey  v.  Dickinson,  13  Met. 
51  (1847). 


246  Taxation   in    Massachusetts 

[G.L.c.  59,  §18,  CI.  5 

and  consequently,  as  the  taxation  of  personal  property  depends 
upon  ownership  and  not  possession,  property  which  executors 
have  gone  through  the  form  of  distributing  to  themselves 
as  trustees  without  the  sanction  of  the  probate  court  is  still 
taxable  to  them  as  executors.12 

A  valid  tax  cannot  be  assessed  upon  a  person  who  is  already 
deceased  13  or  upon  the  "  estate  "  of  a  person  deceased  after  the 
appointment  of  an  executor  or  administrator.14  A  tax  assessed 
to  an  executor  on  the  personal  property  of  the  deceased  is  the 
debt  of  the  executor  and  not  of  the  deceased  and  consequently 
an  action  to  recover  the  tax  may  be  brought  against  the  exec- 
utor more  than  one  year  after  the  date  of  his  appointment.15 

Personal  Property  of  Joint  Owners 

Fourth,  Personal  property  of  joint  owners  or  tenants  in  common, 
other  than  partners,  may  be  assessed  to  one  or  more  of  such  owners, 
and  any  person  so  assessed  shall  be  liable  for  the  whole  tax. 

In  1882  it  was  provided  that  personal  property  of  joint  own- 
ers or  tenants  in  common,  other  than  partners,  should  be  assessed 
to  such  owners  according  to  their  respective  interests  in  the 
cities  and  towns  in  which  they  respectively  resided.1  In  1918 
the  statute  was  put  into  its  present  form.2 

Conduits,  Wires,  Pipes  and  Poles 

Fifth,  Underground  conduits,  wires  and  pipes  laid  in  public  ways, 
except  such  as  are  owned  by  a  street  railway  company,  and  poles, 
underground  conduits  and  pipes,  together  with  the  wires  thereon 
or  therein,  laid  in  or  erected  upon  private  property  or  in  a  railroad 
location  by  any  corporation,  except  poles,  underground  conduits, 
wires  and  pipes  of  a  railroad  corporation  laid  in  or  erected  upon 
the  location  of  such  railroad,  and  except  poles,  underground  conduits, 

12  Hardy  v.  Yarmouth,  6  Allen  277  (1863);  Welch  v.  Boston,  211  Mass.  178 
(1912);   Sears  v.  Nahant,  215   Mass.  329  .(1913). 

13  Cook  v.  Leland,  5  Pick.  236   (1827). 

14  Wood  v.  Torrey,  97  Mass.  321  (1867). 

15  Dallinger  v.  Davis,  149  Mass.  62  (1889).  G.  L.  c.  260,  §  11,  providing 
that  actions  founded  on  contracts  made  or  acts  done  by  an  executor  or  ad- 
ministrator should  be  brought  within  one  year  from  the  time  the  cause  of 
action  accrues  probably  has  no  application  to  an  action  to  recover  a  tax, 
which  is  not  based  upon  any  contract  made  or  act  done  by  an  executor  or 
administrator. 

1  St.  1882.  c.  165. 

2  St.  1918,  c.  129,  §  1,  cl.  4. 


Assessment  of  Local  Taxes  247 

G.L.c.  59,  §18,  CI.  5] 
wires  and  pipes  laid  in  or  erected  upon  any  right  of  way  owned  by 

a  street  railway  company,  shall  be  assessed  to  the  owners  thereof 
in  the  towns  where  laid  or  erected. 

Prior  to  1902  the  only  special  provision  which  could  be  in- 
voked to  authorize  the  local  taxation  of  underground  pipes  and 
similar  structures  used  for  the  distribution  of  some  commodity 
to  the  public  was  that  relating  to  the  taxation  of  machinery  used 
in  manufacture;1  and  the  taxability  of  pipes  under  that  clause 
depended  upon  whether  the  commodity  was  manufactured  or 
was  distributed  in  its  natural  state.2  In  1902  it  was  provided 
that  underground  conduits,  wires  and  pipes  laid  in  public  streets 
by  any  corporation  except  a  street  railway  company  should  be 
assessed  to  the  owners  thereof  in  the  cities  and  towns  in  which 
they  were  laid ;  but  after  a  decision 3  that  water  pipes  and  the 
mains  for  distributing  water  to  the  public  laid  through  private 
land  were  not  taxable  under  this  statute  and  so,  being  owned 
by  a  foreign  corporation  and  considered  by  the  assessors  to  be 
personal  property,  under  the  laws  then  in  force  escaped  all 
taxation  in  this  commonwealth,  the  statute  was  amended  to 
include  poles,  pipes  and  underground  conduits  laid  in  private 
land. 

Pipes,  rails  and  wires  laid  in  public  highways  remain  personal 
property  and  belong  to  the  corporation  which  maintains  them;4 
but  it  would  seem  that  such  objects  when  erected  in  or  upon 
private  land  might  be  real  estate  for  the  purposes  of  taxation 
whatever  the  agreement  might  be  with  the  owner  of  the  land.5 
The  statute,  however,  by  constituting  them  one  of  the  exceptions 
to  the  general  rule  for  the  taxation  of  personal  property,  de- 
clares by  inference  that  such  objects  are  personal  property  for 
the  purposes  of  taxation.  For  the  same  reason  it  was  inferred 
by  the  court  that  the  statute  had  no  reference  to  what  is  un- 
questionably real  estate,  and  it  was  held  that  the  "  rights  of 
way  "  of  street  railway  companies  which  are  impliedly  exempted 
from  local  taxation  by  the  statute  are  their  rights  in  public 

1  G.  L.  c.  59,  §  18,  el.  2,  supra  page  241. 

2  Commonwealth  v.  Lowell  Gas  Light  Co.,  12  Allen  75  (1866);  Dudley 
v.  Jamaica  Pond  Aqueduct  Co.,  100  Mass.  183  (1868). 

3  Coffin  v.  Artesian  Water  Co.,  193  Mass.  274  (1906). 

4  French  v.  Jones,  .191   Mass.  522   (1906). 

5  G.  L.  c.  59,  §  3,  supra  page  190. 


248  Taxation   in   Massachusetts 

[G.L.c.  59,  §18,  CI.  6, 7 

ways  only.6  In  1913  the  legislature  recast  the  law  into  its  pres- 
ent form.7  It  has  been  held  however  that  the  exception  in 
favor  of  street  railways,  like  that  in  favor  of  railroads,  although 
it  has  been  extended  to  cover  any  right  of  way  owned  by  them, 
applies  only  to  poles  and  wires  upon  their  location,  and  does 
not  include  the  poles  and  wires  of  a  transmission  line  laid  across 
private  land  by  virtue  of  an  easement  acquired  for  the  purpose ; 
and  such  structures  are  consequently  subject  to  local  taxation.8 

Partnership  Property 

Sixth,  Partners,  whether  residing  in  the  same  or  different  towns, 
may  be  jointly  taxed  under  their  firm  name,  in  the  place  where  their 
business  is  carried  on,  for  all  the  personal  property  employed  in 
such  business,  except  ships  or  vessels.  If  partners  have  places  of 
business  in  two  or  more  towns,  they  shall  be  taxed  in  each  of  such 
places  for  the  proportion  of  property  employed  therein.  If  so  jointly 
taxed,  each  partner  shall  be  liable  for  the  whole  tax. 

Seventh,  Ships  or  vessels,  other  than  those  in  the  interstate  or 
foreign  carrying  trade  as  to  which  return  is  made  under  section 
eight,  owned  by  a  partnership,  shall  be  assessed  to  the  several  part- 
ners in  their  places  of  residence,  if  within  the  commonwealth,  pro- 
portionally to  their  interests  therein;  but  the  interests  of  the  several 
partners  residing  without  the  commonwealth  shall  be  assessed  to  the 
partnership  in  the  place  where  its  business  is  carried  on. 

The  statute  relating  to  the  taxation  of  partnership  property 
has  received  no  material  modification  since  it  appeared  in  the 
Revised  Statutes  of  1836,  except  for  the  introduction  of 
the  exception  relating  to  ships  and  vessels  in  1859.  "  Place  "  in 
the  first  sentence  of  the  statute  means  city  or  town;  in  the 
second  sentence  a  specific  spot  within  a  city  or  town.1  "  Place 
of  business  "  is  to  be  taken  in  its  ordinary  and  popular  sense ; 
it  does  not  necessarily  mean  a  place  where  the  buying  or  selling 
of  goods  is  carried  on,  or  a  place  in  the  exclusive  occupation 
and  control  of  the  partnership;2  but  it  does  exclude  a  place  where 
the  partners'  work  is  carried  on  under  the  exclusive  control 

6  Connecticut  Valley  St.  Ry.  Co.  v.  Northampton,  213  Mass.  54  (1912). 

7  St.  1913,  c.  458. 

8  Northern  Massachusetts  St.  Ry  Co.  v.  Westminster,  227  Mass.  547  (1917). 

1  Palmer  v.   Kelleher,    111    Mass.   320    (1873). 

2  Barker  v.  Watertown,  137  Mass.  227  (1884);  Duxbury  v.  Plymouth 
County  Commissioners,  172  Mass.  383  (1899). 


Assessment  of  Local  Taxes  249 

G.L.c.  59,  §18,  CI.  6, 7] 

and  direction  of  another.3  An  unincorporated  association  doing 
business  in  the  manner  of  corporations,  the  personal  property  of 
which  is  held  in  trust  for  beneficiaries  whose  interests  are  rep- 
resented by  transferable  shares,  is  a  partnership  and  not  a  trust 
if  the  control  of  the  property  is  in  the  hands  of  the  shareholders 
rather  than  of  the  trustees,  and  the  personal  property  of  such 
an  association  is  taxable  to  the  trustees  in  the  city  or  town  in 
which  the  business  is  carried  on.4  If  the  total  value  of  the 
shares  is  greater  than  the  total  value  of  the  property  of  the  asso- 
ciation on  account  of  the  expectation  of  future  profits  this  ex- 
cess escapes  taxation  under  our  statutes  5  except  so  far  as  it  is 
reached  indirectly  by  the  income  tax. 

A  partnership  continues  to  exist  for  the  purposes  of  taxa- 
tion after  it  has  been  dissolved  until  the  affairs  of  the  firm  are 
wound  up  or  until  all  the  firm  property  has  been  disposed  of;6 
but-  partners  who  have  withdrawn  from  a  firm  are  not  personally 
liable  for  the  tax  assessed  in  the  firm  name  although  they  have 
not  notified  the  assessors  of  their  withdrawal.7  The  status  of  a 
partner  who  has  withdrawn  from  a  firm  and  allowed  his  share 
to  remain  for  a  certain  period  is  that  of  a  creditor,8  unless  it 
appears  that  it  was  the  intent  of  the  partner  that  the  obligations 
of  a  partnership  should  continue.9  If  a  partnership  is  dissolved 
after  the  first  day  of  April  in  a  year  by  the  withdrawal  of  some 
of  the  partners,  such  partners  are  equally  responsible  for  taxes 
assessed  during  the  year  with  those  who  continued  the  business.10 

The  statute  has  no  application  to  a  partnership  which  has 
no  place  of  business  in  the  commonwealth,  and  the  property 
of  such  a  partnership  if  within  the  commonwealth  must  be 
taxed  in  accordance  with  the  other  provisions  of  law.11 

Difficult  questions  may  arise  when  the  same  items  of  property 

3  Little  v.  Cambridge,  9  Cush.  298  (1852);  Cloutman  v.  Concord,  163  Mass. 
444  (1895). 

4  Hoadley  v.  Essex  County  Commissioners,  105  Mass.  519  (1870);  Ricker 
v.  American  Loan  &  Trust  Co.,  140  Mass.  346  (1885);  Williams  v.  Boston,  208 
Mass.  497  (1911);  Williams  v.  Milton,  215  Mass.  1  (1913);  Foster  v.  Boston, 
215  Mass.  31   (1913).    See  also  injra  pages  616,  618. 

5  Hoadley  v.  Essex  County  Commissioners,  105  Mass.  519  (1870). 

6  Oliver  v.  Lynn,  130  Mass.  143  (1881). 

7  Washburn  v.  Walworth,  133  Mass.  499   (1882). 
s  Williams  v.  Brookline,  194  Mass.  44  (1907). 

9  Stearns  v.  Brookline,  219  Mass.  238  (1914). 

10  Hurter  v.  Larrabee,  224  Mass.  218  (1916). 

11  Bemis  v.  Aldermen  of  Boston,  14  Allen  366  (1867). 


250  Taxation   in   Massachusetts 

[G.L.c.  59,  §19 

of  a  partnership  appear  to  be  taxable  in  the  same  year  in  two 
different  towns,  under  different  clauses  of  this  section,  since  there 
is  nothing  in  the  statutes  to  indicate  which  clause  is  intended 
to  prevail  in  case  of  a  conflict.  Thus  if  tangible  personal  property 
belonging  to  a  partnership  and  employed  in  its  business  was 
kept  in  a  town  in  which  the  partnership  had  no  place  of  busi- 
ness, such  property  would  be  taxable  under  clause  first  in  the 
town  where  it  was  kept  and  under  clause  sixth  in  the  town  in 
which  the  business  of  the  partnership  was  carried  on.  Obviously 
it  could  not  be  taxed  in  both  places,  and  if  the  tax  rates  of  the 
two  towns  differed  widely,  the  place  of  taxation  might  be  of 
great  importance.  The  decisions  under  the  earlier  statutes  throw 
very  little  light  on  this  problem.12 

Clause  seventh,  relating  to  ships  and  vessels,  was  first  enacted 
in  1859  shortly  after  a  decision  that  ships  belonging  to  a  part- 
nership and  employed  in  its  business  were  to  be  taxed  to  the 
partners  jointly  in  the  town  where  their  business  was  carried  on 
and  not  separately  at  their  places  of  residence.13  There  is 
nothing  in  this  statute  from  which  it  can  be  inferred  that  joint 
owners  of  ships  or  vessels  who  are  not  partners  in  mercantile  or 
other  business  are  liable  to  be  taxed  jointly  at  a  place  where 
they  do  not  reside  instead  of  being  severally  assessed  in  their  re- 
spective places  of  residence  proportionally  to  their  interests  in 
the  property. 


14 


Personal  Property  Mortgaged  or  Pledged 

Section  19.  Personal  property  mortgaged  or  pledged  shall  for 
the  purpose  of  taxation  be  deemed  the  property  of  the  party  in  pos- 
session thereof  on  April  first. 

This  statute,  so  far  as  it  relates  to  mortgaged  or  pledged 
property,  has  remained  without  material  change  since  its  enact- 
ment in  the  Revised  Statutes  of  1836.  While  intangible  prop- 
erty remained  locally  taxable  it  was  held  that  the  statute  ap- 
plied only  to  tangible  personal  property,  and  that  stocks  and 

12  See  Lee  v.  Templeton,  6  Gray  579  (1856);  Ricker  v.  American  Loan  & 
Trust  Co.,  140  Mass.  346  (1885) ;  Cotton  v.  Boston,  161  Mass.  8  (1894);  Williams 
v.  Boston,  208  Mass.  497  (1911). 

13  Peabody  v.  Essex  County  Commissioners,  10  Gray  97  (1857). 

14  Stinson  v.  Boston,  125  Mass.  348  (1878). 


Assessment  of  Local  Taxes  251 

G.L.c.  59,  §21] 

bonds  pledged  or  mortgaged  were  taxable  to  the  pledgor  or  mort- 
gagor.1 The  statute  is  not  limited  in  its  application  to  the  local 
property  tax,  but  establishes  as  a  general  rule  the  principle  that 
in  the  administration  of  the  tax  laws  the  person  in  possession  as 
pledgee  of  pledged  property  shall  be  treated  as  the  owner.2 

The  statute  has  no  application  to  the  place  in  which  pledged 
property  is  to  be  taxed,  but  merely  fixes  the  person  to  whom  it 
is  to  be  assessed.  The  place  is  fixed  by  other  provisions  of  stat- 
ute, and  ordinarily  would  be  where  the  property  was  kept,3 

Warrants  for  Assessment  of  State  Tax 

Section  20.  When  a  state  tax  is  to  be  assessed,  or  an  assessment 
is  required  to  reimburse  the  commonwealth  under  section  forty-one 
of  chapter  forty-four,  for  expenses  incurred  under  sections  thirty-five 
to  forty,  inclusive,  of  said  chapter,  the  state  treasurer  shall  send  his 
warrants  for  the  assessment  thereof  by  mail  to  the  assessors  of  the 
several  towns. 

The  method  of  apportioning  the  state  tax  upon  the  different 
cities  and  towns  of  the  commonwealth  is  set  forth  in  another 
portion  of  this  work.1. 

The  Taxes  which  the  Assessors  are  Required  to  Assess 

Section  21.  The  assessors  shall  assess  state  taxes  including  all 
lawful  assessments  by  the  commonwealth  for  which  they  receive  war- 
rants under  the  preceding  section,  county  taxes  duly  certified  to  them, 
town  taxes  voted  by  their  respective  towns  and  all  taxes  duly  voted 
and  certified  by  fire,  water,  light  and  improvement  districts  therein. 
Such  district  taxes  shall  be  subject  to  the  law  relative  to  the  assess- 
ment and  collection  of  town  taxes,  so  far  as  applicable.  Except  as 
otherwise  provided,  all  taxes  shall  be  assessed  as  of  April  first. 

Assessors  are  public  officers  whose  duties  are  defined  by  stat- 
ute in  great  detail,1  and  it  is  not  within  the  power  of  a  town  to 

1  Waltham   Bank   v.   Waltham,    10    Met.   334    (1845) ;    Hall   v.    Middlesex 
County  Commissioners,  10  Allen  100   (1865);   Chase  v.  Boston,  180  Mass.  458 
(1902);  Chase  v.  Boston,  193  Mass.  522  (1907).    See  however  under  the  Income 
Tax  Act,  G.  L.  c.  62,  §  1,  subsection  (f),  infra  page  446. 
v    2  Boston  Loan  Co.  v.  Commonwealth,  224  Mass.  181   (1916). 

3  Boston  Loan  Co.  v.  Boston,  137  Mass.  332  (1884). 

1  G.  L.  c.  58,  §  §  9,  10,  supra  page  167. 

1  The  provision  as  to  "all  lawful  assessments  by  the  commonwealth"  was 
added  by  the  commissioners  who  prepared  the  General  Laws  to  make  it  clear 


252  Taxation   in    Massachusetts 

[G.L.c.  59,  §22 
impose  additional  duties  upon  them,  either  with  or  without 
additional  compensation.2 

No  one  but  the  assessors  can  assess  a  tax,  and  even  if  a 
town  has  collected  a  tax  which  the  assessors  did  not  assess  it  is 
not  estopped  to  deny  that  the  tax  was  duly  assessed;3  but  if 
the  assessors  assess  a  tax  and  the  town  receives  the  money  the 
town  cannot  set  up  an  informality  in  the  assessment  to  avoid 
its  effect.4  If  the  assessors  intentionally  neglect  to  assess  a  per- 
son they  know  to  be  taxable,  such  person  cannot  be  taken  to 
have  been  duly  assessed.5  Although  the  assessors  as  a  board  are 
obliged  to  assess  all  the  taxes,  there  is  no  valid  objection  to 
their  apportioning  the  town  among  them,  if  the  board  as  a 
whole  ratifies  and  accepts  the  findings  of  the  individual  members 
in  their  respective  localities.6 

It  is  not  requisite  to  the  validity  of  the  acts  of  a  board  of 
assessors  that  all  the  assessors  concur  therein ;  a  board  of  assess- 
ors like  other  public  boards  may  act  through  the  vote  of  a 
majority;7  and  if  there  is  a  vacancy  in  the  board,  the  remaining 
members  may  act  until  the  vacancy  is  filled.8 

Omission  of  Shares  in  National  Banks 

Section  22.  Assessors  of  towns  where  a  bank  is  located  the 
shares  of  which  are  subject  to  taxation  under  section  one  of  chapter 
sixty-three  shall,  for  the  purpose  of  ascertaining  the  rate  at  which 


that  metropolitan  assessments  and  assessments  for  state  highways  and  the  like 
were  included.  See  Commissioners'  Report,  Notes  to  Chap.  59.  As  to  state 
taxes  see  G.  L.  c.  58,  §  §  9,  10,  supra  page  167.  As  to  county  taxes  see 
G.  L.  c.  35,  §  §  30,  31,  supra  page  143.  As  to  district  taxes  see  G.  L.  c.  48, 
§  §  69,  73,  supra  page  162.  As  to  other  duties  of  assessors  see  G.  L.  c.  59, 
§  §  83-86  inc.,  infra  pages  313,  314. 

2  Thus  in  Cox  v.  Segee,  206  Mass.  380  (1910),  it, was  held  that  a  town  by-law 
requiring  the  assessors  to  report  to  the  town  the  abatements  and  reasons  there- 
for, and  the  total  valuation,  the  rate  and  amount  raised  was  invalid;  and  in 
Gile  v.  Perkins,  207  Mass.  172  (1911),  it  was  held  that  after  a  valuation  had 
been  made  for  one  year  and  before  it  could  be  made  for  the  next,  a  town  had 
no  authority  to  pay  its  assessors  for  making  a  new  and  elaborate  valuation  for 
the  purpose  of  publishing  the  same  and  saving  part  of  the  labor  of  making 
a  valuation  for  the  ensuing  year. 

3  Plymouth  v.  Wareham,  126  Mass.  475  (1879)  (Name  added  to  tax  list 
by  collector's  clerk  without  the  knowledge  of  the  assessors). 

*  Boston  v.  Dedham,  4   Met.   178    (1842). 

5  Berlin  v.  Bolton,  10  Met.  115  (1845). 

6  Welsh   v.   Briggs,  204    Mass.   540    (1904). 
»  Sprague  v.  Bailey,   19  Pick.  436    (1837). 

8  George  v.  School  District  in  Mendon,  6  Met.  497  (1843);  Cooke  v. 
Scituate,  201  Mass.  107  (1909). 


Assessment  of  Local  Taxes  253 

G.  L.  c.  59,  §  23, 24] 
taxes  shall  be  assessed,  omit  from  the  valuation  upon  which  the  rate 

is  to  be  based  the  value  of  all  shares  thereof  held  by  non-residents 

of  said  towns,  and  no  tax  of  any  town  shall  be  invalidated  by  reason 

of  any  excess,  in  consequence  of  this  section,  of  the  amount  of  such 

tax  over  the  amount  to  be  raised. 

It  was  held  in  1869  that  this  statute  was  not  obnoxious  to 
the  provision  of  the  Massachusetts  constitution  requiring  pro- 
portional taxation  or  to  the  acts  of  Congress  establishing  national 
banks  which  prohibited  the  assessment  of  their  shares  at  a 
greater  rate  than  other  moneyed  capital,  for  the  reason  that 
the  omission  of  such  shares  when  held  by  non-residents  from 
the  valuation  upon  which  the  local  rate  was  based  did  not  as 
a  matter  of  fact  result  in  the  slightest  change  of  rate  or  propor- 
tion in  the  tax  which  the  non-resident  holders  were  obliged  to 
pay.1  The  reason  for  the  enactment  of  the  statute  is  that  the 
act  of  Congress  forbids  the  taxation  of  shares  in  a  national  bank 
owned  by  non-residents  of  a  state  elsewhere  than  in  the  city 
or  town  in  which  such  bank  is  located,  and  the  tax  is  assessed 
accordingly;  but  to  harmonize  the  system  of  taxing  national 
banks  with  that  of  taxing  corporations  generally  in  this  com- 
monwealth, the  amount  so  collected  from  non-residents  is  turned 
over  to  the  commonwealth.2 

Amount  of  Annual  Assessment — Fixing  of  Tax  Rate 

Section  23  (as  amended  by  St.  1921,  chap.  348).  The  assessors 
shall  annually  assess  taxes  to  an  amount  not  less  than  the  aggregate 
of  all  amounts  appropriated,  granted  or  lawfully  expended  by  their 
respective  towns  since  the  last  preceding  annual  assessment  and  not 
provided  for  therein,  of  all  amounts  required  by  law  to  be  raised 
by  taxation  by  said  towns  during  said  year,  of  all  amounts  necessary 
to  satisfy  final  judgments  against  said  towns  and  of  all  abate- 
ments granted  on  account  of  the  tax  assessment  of  any  year  in  excess 
of  the  overlay  of  that  year,  and  not  otherwise  provided  for;  but  such 
assessments  shall  not  include  liabilities  for  the  payment  of  which 
towns  have  lawfully  voted  to  contract  debts.  The  assessors  may  deduct 
the  amount  of  all  the  estimated  receipts  of  their  respective  towns, 

1  Providence  Institution  for  Savings  v.  Boston,  101  Mass.  575  (1869).  As 
to  taxation  of  shares  in  national  banks  see  G.  L.  c.  63,  §  §  1-10  inc.,  infra. 
pages  505  to  514  inc. 

2  G.  L.  c.  58,  §  §  20-24  inc.,  supra  pages  175  to  178  inc. 


254  Taxation   in    Massachusetts 

[G.L.c.  59,  §§23,24 
except  from  loans  or  taxes,  lawfully  applicable  to  the  payment  of 
the  expenditures  of  the  year  from  the  amount  required  to  be  assessed; 
but  such  deduction  shall  not  exceed  the  amount  of  the  corporation  tax 
received  from  the  commonwealth  on  or  before  May  first  of  the  current 
year  on  account  of  the  assessments  of  the  previous  year  and  of  such 
other  receipts  as  have  been  received  during  the  preceding  financial 

year. 

Section  24.  The  assessors  of  a  town  owing  debts  incurred  to 
obtain  funds  for  subscriptions  for  the  capital  stock  and  securities  of  a 
railroad  corporation  shall  annually  assess,  in  addition  to  the  other 
amounts  required  by  law,  an  amount  sufficient  to  pay  the  excess  of 
such  interest  payable  by  such  town  over  any  income  received  from 
such  stock  or  securities. 

The  principle  of  the   foregoing  sections  is  comparatively 
simple.     The  statutes  do  not  contemplate  the  acquirement  of 
a  surplus  by  a  town,  and  the  assessors  are  expected  to  compute 
the  amount  actually  required  to  meet  the  appropriations  voted 
by  the  town,  the  overlay,  interest  charges,  burdens  imposed  by 
the  legislature  and  judgments  of  the  courts,  deducting  the  antic- 
ipated receipts  of  the  town  from  other  sources,  and  to  assess 
the  amount  so  computed  and  no  more  as  the  annual  town  tax. 
The  statutes  require  the  assessors  to  assess  not  less  than  this 
amount,  and  do  not  in  terms  forbid  them  to  assess  more  except 
so  far  as  the  authority  for  an  overlay  of  five  per  cent  is  an  im- 
plied limitation  against  the  assessment  of  a  greater  amount;1 
but  an  assessment  for  a  larger  amount  than  required  for  the 
legitimate  expenditures  of  the  town  would  be  beyond  the  stat- 
utory powers  of  a  town  2  and  might  moreover  constitute  taxa- 
tion for  a  purpose  not  public  which  the  legislature  itself  could 
not  constitutionally  authorize.3     When  however  the  town  has 
on  hand  large  amounts  of  money  consisting  of  the  unexpended 
balances  of  appropriations  of  previous  years,  the  balance  of 
the  overlay  of  previous  years,  receipts  from  the  income  tax, 
corporation  taxes  and  other  sources  in  excess  of  the  estimated 
receipts  from  such  sources,  amounts  derived  from  the  assessment 
of  omitted  property,4  or  funds  in  the  treasury  of  any  other  origin 
which  may  lawfully  be  expended,  the  assessors  are  not  bound  to 

1  As  to  overlay  see  G.  L.  c.  59,  §  25,  infra  page  255. 

2  Freeland  v.  Hastings,  10  Allen  570,  576  (1865). 

3  Supra,  Part  1,  §  58. 

4  Under  G.  L.  c.  59,  §  75,  infra  page  304. 


Assessment  of  Local  Taxes  255 

G.  L.  c.  59,  §  25] 

consider  these  amounts  in  assessing  the  tax  for  the  ensuing  year, 
and  they  may  be  and  commonly  are  left  in  the  treasury  to  con- 
stitute a  "  reserve  fund  "  or  "  excess  and  deficiency  account " 
available  for  appropriation  for  unforeseen  expenditures  arising 
after  the  tax  rate  has  been  fixed  and  before  the  beginning  of 
the  next  fiscal  year.  The  town  may  however,  if  it  sees  fit,  ap- 
propriate money  from  the  reserve  fund  for  the  current  expendi- 
tures of  the  town  prior  to  the  fixing  of  the  tax  rate,  and  thus 
reduce  the  assessment  for  the  current  year. 

The  distinction  between  the  tax  rate  and  the  tax  limit  is 
explained  elsewhere  in  this  work.5  The  tax  rate  is  fixed  by  de- 
ducting from  the  amount  to  be  raised  (including  overlay)  the 
estimated  receipts  from  income  taxes,  corporation  taxes  and 
other  sources  and  the  sum  to  be  raised  from  poll  taxes,  and 
dividing  the  balance  by  the  aggregate  valuation  of  real  estate 
and  tangible  personal  property  taxable  within  the  town. 

There  are  two  provisions  of  section  twenty-three  that  are 
not  to  be  taken  literally.  The  statute  says  that  the  assessors  may 
deduct  the  estimated  receipts  "  except  from  loans  or  taxes.  " 
By  "  taxes  "  only  the  taxes  collected  directly  by  the  town  are 
meant;  taxes  which  are  paid  to  the  state  and  distributed  to 
the  towns,  such  as  income  taxes  and  corporation  taxes,  may  of 
course  be  deducted  in  computing  the  amount  to  be  assessed. 
In  respect  to  the  receipts  from  the  income  tax,  the  assessors 
are  governed  by  the  estimate  of  the  commissioner  of  corporations 
and  taxation  rather  than  by  the  actual  receipts  of  the  preceding 
year.6 

Overlay 

Section  25.  The  assessors  in  any  city  or  town,  except  Boston, 
may  add  to  the  amount  to  be  assessed  not  more  than  five  per  cent 
thereof,  although  the  limit  of  taxation  as  fixed  in  any  city  may  by 
such  overlay  be  exceeded,  such  amount  to  be  used  only  for  avoiding 
fractional  divisions  of  the  amount  to  be  assessed  in  the  apportionment 
thereof  and  for  abatements  granted  on  account  of  polls  or  property 
assessed  in  the  year  in  which  the  overlay  is  made  or  of  taxes  in  the 
warrant  of  which  the  overlay  is  a  part;  but  any  balance  in  the  over- 
lay account,  in  excess  of  the  amount  of  the  warrant  remaining  to  be 
collected  or  abated,  shall  be  transferred  to  a  reserve  fund  to  be  used 
for  extraordinary  or  unforeseen  expenses. 

5  G.  L.  c.  44,  §  29,  supra  page  159. 
c  G.  L.  c.  58,  §  19,  supra  page  172. 


256  Taxation   in    Massachusetts 

[G.  L.  c.  59,  §  26 

Prior  to  1785  it  had  been  the  common  practice  of  assessors, 
either  to  suit  their  convenience  in  calculating  the  apportionment 
of  the  tax,  or  with  a  view  to  meeting  abatements  or  defalca- 
tions and  mistakes,  to  add  to  the  amount  of  the  tax  required 
by  the  votes  of  the  town  a  sum  sufficient  in  their  judgment  to 
answer  these  purposes.1  This  was  however  done  without  any 
statutory  authority;  and  in  order  to  remove  doubts  as  to  the 
power  of  assessors  to  do  this,  and  at  the  same  time  to  limit 
their  discretion,  it  was  provided  in  the  statute  of  1785  relating 
to  the  duties  of  assessors  that  the  assessors  might  make  an  over- 
lay not  exceeding  five  per  cent  of  the  amount  of  the  tax  and 
in  no  case  exceeding  forty  pounds.  The  latter  limitation  was 
removed  in  1828.  After  1785  the  assessors  could  not  lawfully 
make  an  overlay  exceeding  five  per  cent;2  but  the  overlay  might 
equal  five  per  cent  of  the  whole  tax  they  were  authorized  to 
assess  and  not  merely  of  the  town  tax.3  Prior  to  1859  an  ex- 
cessive overlay  rendered  the  whole  tax  void;4  but  under  the 
statutes  in  force  since  then  a  tax  illegal  in  part  is  illegal  only  to 
the  amount  of  the  part  that  is  illegal,  and  accordingly  an  ex- 
cessive overlay  does  not  render  the  whole  tax  void.5 

Prior  to  1913  there  was  no  provision  in  the  statutes  re- 
specting the  use  to  be  made  of  the  funds  raised  by  the  overlay; 
in  that  year  provision  was  made  for  the  use  of  the  overlay  for 
abatements  granted  on  account  of  polls  assessed,6  and  in  1918  the 
statute  was  placed  in  its  present  form,7  the  limitation  to  polls 
being  considered  to  have  been  unintentionally  made.8 

Inclusion  of  State,  County  and  Town  Taxes  in  one 

Assessment 

Section  26.  The  assessors  may  include  state,  county,  city  and 
town  taxes,  or  any  two  of  them,  in  the  same  assessment. 

i  Alvord  v.  Collin,  20  Pick.  418  (1838) ;  Cone  v.  Forrest,  126  Mass.  97  (1879). 

2  Libby  v.  Burnham,  15  Mass.  144  (1818);  Alvord  v.  Collin,  20  Pick.  418 
(1838);  Cone  v.  Forrest,  126  Mass.  97  (1879). 

3  Alvord  v.  Collin,  20  Pick.  418   (1838). 

4  Alvord  v.  Collin,  20  Pick.  418   (1838). 

5  St.  1859,  c.  118,  now  G.  L.  c.  59,  §  82,  infra  page  311;  Cone  v.  Forrest,  126 
Mass.  97  (1879). 

«  St.  1913,  c.  649;  St.  1913,  c.  823. 

7  St.  1918,  c.  257,  §  37.  This  statute  also  contains  a  provision  applicable 
to  the  City  of  Boston. 

8  See  Preliminary  Report  of  Commissioners  to  Consolidate  the  General 
Laws,  p.  105. 


Assessment  of  Local  Taxes  257 

G.L.c.  59,  §§27,28] 

During  the  colonial  and  provincial  periods  there  appear  to 
have  been  separate  assessments  in  each  town  of  the  colony  or 
province  tax,  the  county  tax  and  the  town  tax;  but  in  1785 
it  was  provided  that  whereas  the  county  tax  might  often  be 
so  small  that  it  would  be  inconvenient  to  make  a  separate 
list  of  each  person's  proportion  of  it,  in  such  case  the  assessors 
of  any  town,  district  or  plantation  might  lawfully  add  their 
proportion  of  the  county  tax  to  any  of  their  other  taxes.  The 
state  tax  could  not  under  that  statute  be  united  with  the  town 
and  county  tax;1  but  under  the  Revised  Statutes  of  1836  pro- 
vision was  made  authorizing  the  inclusion  of  the  state  tax  with 
the  county  and  town  taxes  in  one  assessment.  It  is  now  the 
universal  practice  to  include  these  taxes  in  one  assessment;  and 
the  tax  rate  of  each  town,  as  commonly  quoted,  includes  state 
and  county  taxes. 

Remedy  if  Assessors  Fail  to  Act 

Section  27.  If  assessors  neglect  to  assess  a  state,  county,  city, 
town  or  district  tax  required  by  law,  the  county  commissioners  shall 
forthwith  appoint  other  persons  in  accordance  with  section  twenty- 
seven  of  chapter  forty-one. 

Section  28.  If  a  state  or  county  tax  is  not  assessed,  and  paid 
by  the  town,  within  the  time  prescribed,  and  remains  unpaid  at  the 
expiration  of  five  months  after  the  receipt  of  a  warrant  from  the 
state  treasurer  or  of  a  certificate  from  the  county  commissioners 
requiring  its  assessment,  the  amount  of  the  tax  may  be  recovered  of 
the  town  in  contract  by  the  state  treasurer  or  the  treasurer  of  the 
county  respectively. 

Assessors  who  neglect  to  assess  the  taxes  required  by  law  are 
liable  to  a  fine  as  well  as  to  removal.1 

Under  the  present  statutes  the  share  of  each  town  in  the 
state  and  county  taxes  is  dependent  to  a  considerable  extent 
upon  the  determination  of  the  commissioner  of  corporations  and 
taxation  of  its  valuation,  although  the  state  tax  is  of  course 
actually  assessed  by  the  legislature.2  A  town  may  question  the 
correctness  of  the  commissioner's  valuation  either  in  an  action 

1  Alvord  v.  Collin.  20  Pick.  418,  424  (1838). 

1  See  G.  L.  c.  59,  §  93,  infra  page  319. 

2  See  G.  L.  c.  58,  §  §  9,  10,  supra  page  167. 


258  Taxation   in   Massachusetts 

[G.  L.  c.  59,  §  29 

brought  under  section  twenty-eight  by  the  state  or  a  county 
to  recover  the  town's  share  in  the  state  tax  or  in  an  information 
brought  by  the  state  treasurer  under  the  provisions  of  the  annual 
act  imposing  the  state  tax,  and  may  in  such  proceedings  contest 
the  constitutionality  of  any  other  burden  imposed  upon  the 
town  as  a  part  of  the  state  tax.3 

The  Notice  to  Taxpayers  to  Bring  in  Lists 

Section  29.  Assessors  before  making  an  assessment  shall  give 
seasonable  notice  thereof  to  all  persons  subject  to  taxation  in  their 
respective  towns.  Such  notice  shall  be  posted  in  one  or  more  public 
places  in  each  town,  or  shall  be  given  in  some  other  sufficient  manner, 
and  shall  require  the  said  persons  to  bring  in  to  the  assessors,  before 
a  date  therein  specified,  in  case  of  residents  a  true  list,  containing 
the  items  required  by  the  commissioner  in  the  form  prescribed  by 
him  under  section  five  of  chapter  fifty-eight  of  all  their  polls  and 
personal  estate  not  exempt  from  taxation,  except  intangible  property 
the  income  of  which  is  included  in  a  return  filed  the  same  year  in 
accordance  with  sections  twenty -two  to  twenty-five,  inclusive,  of  chap- 
ter sixty-two,  and  in  case  of  non-residents  and  foreign  corpora- 
tions such  a  true  list  of  all  their  personal  estate  in  that  town  not 
exempt  from  taxation,  and  may  or  may  not  require  such  list  to 
include  their  real  estate  subject  to  taxation  in  that  town.  It  shall 
also  require  all  persons,  except  corporations  making  returns  to  the 
commissioner  of  insurance  as  required  by  section  thirty-eight  of 
chapter  one  hundred  and  seventy-six,  to  bring  in  to  the  assessors 
before  a  date  therein  specified,  which  shall  not  be  later  than  June 
first  following,  unless  the  assessors  for  cause  shown  extend  the  time 
to  July  first,  true  lists,  similarly  itemized,  of  all  real  and  personal 
estate  held  by  them  respectively  for  literary,  temperance,  benevolent, 
charitable  or  scientific  purposes  on  April  first  preceding,  or  at  the 
election  of  any  such  corporation  on  the  last  day  of  its  fiscal  year 
last  preceding  said  April  first,  and  to  state  the  amount  of  receipts 
and  expenditures  for  said  purposes  during  the  year  last  preceding 
said  days.  The  notice  shall  contain  the  provisions  of  section  thirty- 
four. 

The  requirement  of  furnishing  a  list  of  taxable  property  was 
first  imposed  upon  taxpayers  in  Massachusetts  by  the  annual 

8  Chelsea  v.  Treasurer  &  Receiver  General,  237  Mass.  422   (1921). 


Assessment  of  Local  Taxes  259 

G.  L.  c.  59,  §  29] 

tax  act  of  1715  j1  and  it  was  continued  in  the  annual  and  special 
tax  acts  without  material  change  until  1735.  The  obligation 
was  upon  the  inhabitants  of  the  town  to  bring  in  "  true  and 
perfect  lists  of  their  polls  and  ratable  estates.  V  In  1735  the 
failure  to  file  a  list  was  for  the  first  time  made  a  cause  for  re- 
fusing an  abatement.2  The  development  of  this  phase  of  the 
law  relating  to  lists  is  discussed  at  length  elsewhere  in  this  work.3 
The  permanent  statute  o^  1785 4  contained  the  customary  pro- 
vision for  notices  and  lists  and  remained  in  force  through  the 
subsequent  revisions  without  material  change  until  1877  when 
it  was  made  optional  with  the  assessors  to  require  the  lists  of 
property  to  include  real  estate.5  In  1882  the  provision  of  statute 
relating  to  the  taxation  of  mortgaged  land  was  adopted 6  and 
the  requirement  that  the  provisions  of  this  statute  be  included 
in  the  notice,  now  appearing  at  the  end  of  the  section  under 
consideration,  was  imposed.  In  1881  and  1888  the  provisions 
for  the  return  of  lists  of  property  held  for  literary,  charitable 
and  similar  purposes  were  enacted.7  In  1898  it  was  held  that 
the  inhabitants  of  the  city  or  town  by  which  the  tax  was  assessed 
were  the  only  persons  who  had  to  file  lists  on  or  before  the  des- 
ignated date,  because  they  were  the  only  persons  whom  the 
assessors  were  required  to  notify  to  bring  in  lists,8  but  in  1903 
the  statute  was  put  in  substantially  its  present  form,  requiring 
all  persons,  firms  and  corporations  subject  to  taxation  to  file 
lists.9  The  only  changes  since  then  have  been  to  set  back  one 
month  all  the  points  of  time  fixed  in  the  statute 10  and  the  amend- 

i  St.  1715-16,  c.  11,  §§4,  5. 

2  St.  1735-6,  c.   13,  §  5. 

3  G.  L.  c.  59,  §  61,  infra  page  287. 
*  St.    1785,    c.   50,    §  9. 

6  St.  1877,  c.  160. 

6  St.  1882,  c.  175,  §  1,  now  G.  L.  c.  59,  §  34,  infra  page  263. 

7  St.  1888,  c.  323. 

8  Hopkins  v.  Reading,  170  Mass.  568  (1898).  It  was  held  in  Otis  Co.  v. 
Ware,  8  Gray  509  (1857),  that  the  statute  although  it  applied  in  terms  to  "in- 
habitants" included  a  corporation  holding  taxable  real  estate  in  the  town. 
In  Greenfield  v.  Franklin  County  Commissioners,  135  Mass.  566  (1883),  it  was 
held  that  the  statute  had  no  application  to  a  corporation  established  under  a 
special  statute  which  provided  that  its  funds  for  the  purposes  of  taxation 
should  be  divided  among  eight  designated  towns  and  that  the  assessors  of  each 
should  be  notified  of  the  apportionment;  for  the  notice  of  the  apportionment 
required  by  the  charter  was  a  substitute  for  the  list  required  by  the  general 
statute. 

9  St.  1903,  c.  157. 
10  St.  1909,  c.  440;  St.  1914,  c.  198,  §5. 


260  Taxation   in   Massachusetts 

[G.  L.  c.  59,  §  29 

ments  recommended  by  the  commissioners  who  consolidated 
the  laws,  making  clear  what  is  meant  by  a  list  and  omitting  in- 
tangible property  subject  to  the  income  tax  from  the  property 
to  be  included  in  the  list.11 

A  list  is  a  catalogue,  inventory  or  schedule,  itemized  in 
sufficient  detail  to  convey  a  reasonable  understanding  of  the  ex- 
tent and  nature  of  the  subject  to  which  it  refers.12  Absolute 
precision  in  the  description  of  property  included  in  the  list  is 
not  required,13  but  a  description  may  be  so  vague  and  uncertain 
as  not  to  constitute  a  valid  list.14  Mere  reference  to  an  old  list 
is  not  sufficient,15  but  if  the  assessors  receive  without  objection 
a  list  referring  to-  the  list  of  a  previous  year  for  descriptions  and 
values  they  may  be  held  to  have  waived  the  insufficiency  of  the 
list.16 

All  persons  who  hold  property  liable  to  taxation  are  bound 
to  bring  in  a  list,  whether  they  hold  it  in  their  own  right  or  in 
a  representative  capacity,  as  executors,  administrators  or  trus- 
tees,17 and  a  list  filed  by  a  person  in  one  capacity  cannot  be  treated 
as  a  list  which  he  should  have  filed  in  another  capacity.18 

The  filing  of  lists  by  any  or  all  of  the  taxpayers  is  not  a 
condition  precedent  to  the  levy  of  a  valid  tax,  and  consequently 

*  St.   1918,  c.  257,   §36. 

a2  Boston  Rubber  Shoe  Co.  v.  Maiden,  216  Mass.  508  (1914) ;  and  note 
the  present  wording  of  the  statute. 

13  In  Charlestown  v.  Middlesex  County  Commissioners,  1  Allen  199  (1861), 
the  list  of  a  railroad  company  described  its  taxable  real  estate  as  "all  of  its 
real  estate  except  that  embraced  in  its  location,  that  is  to  say,  348,310  square 
feet  of  land  and  wharf  with  the  buildings  thereon — the  same  lying  between 
Prison  Point  and  Warren  avenue,  valued  at  $350,000."  It  was  held  a  sufficient 
list.  In  Troy  Cotton  &  Woolen  Manufactory  v.  Fall  River,  167  Mass.  517 
(1897),  it  appeared  that  the  petitioner  filed  a  list  describing  under  the  head  of 
real  estate  the  mill  buildings  and  machinery  as  "One  stone  mill  and  cloth 
room  with  water  power,  21,744  mule  spindles,  21,952  ring  frame  spindles."  The 
mill  had  the  machinery  commonly  found  in  such  mills,  and  the  word  "spindle" 
signified  not  a  piece  of  machinery  but  a  unit  of  the  capacity  of  the  mill  and 
its  appliances.  This  meaning  was  understood  by  the  assessors,  who  asked  for 
no  further  explanation.  It  was  held  that  the  list  was  sufficient  compliance  with 
the  statute. 

14  Pingree  v.  Berkshire  County  Commissioners,  102  Mass.  76  (1869);  Boston 
Rubber  Shoe  Co.  v.  Maiden,  216  Mass.  508  (1914). 

15  Winnisimmet  Co.  v.  Assessors  of  Chelsea,  6  Cush.  477  (1850). 

16  Great  Barrington  v.  Berkshire  County  Commissioners,  112  Mass.  218 
(1873). 

17  Vaughn  v.  Street  Commissioners  of  Boston,  154  Mass.  143  (1891). 

18  Sears  v.  Nahant,  221  Mass.  437,  443  (1915).  In  that  case  it  was  held  that 
a  list  filed  by  petitioners  as  trustees  could  not  be  taken  as  a  list  in  theif 
capacity  as  executors.  As  there  is  now  no  distinction  between  trustees  and 
executors  in  the  method  of  taxation  it  is  doubtful  if  this  decision  is  still  law. 


Assessment  of  Local  Taxes  261 

G.L.c.  59,  §31] 

one  taxpayer  cannot  refuse  to  pay  his  tax  because  other  tax- 
payers have  not  brought  in  lists.11 


18 


Furnishing  of  Blank  Lists 

Section  30.  The  assessors  shall  furnish  a  blank  list  prescribed 
by  the  commissioner  under  section  five  of  chapter  fifty-eight  to  any 
person  liable  to  taxation. 

The  provision  for  the  preparation  of  forms  by  the  tax  com- 
missioner for  lists  of  property  held  for  literary,  charitable  and 
similar  purposes  originated  in  1882,  and  the  provision  for  other 
property  in  1894.  In  1909  the  statute  was  amended  by  requiring 
the  tax  commissioner  to  prepare  instructions  for  drawing  up 
the  assessors'  notice.  Until  1909  it  was  open  to  argument 
whether  the  use  of  the  tax  commissioner's  forms  in  filing  lists 
of  taxable  property  was  optional,  but  in  that  year  a  statute 
was  enacted  which  made  the  use  of  such  forms  a  condition 
precedent  to  an  abatement.1 

Verification  of  List  by  Oath  of  Taxpayer 

Section  31.  The  assessors  shall  in  all  cases  require  a  person 
bringing  in  a  list  to  make  oath  that  it  is  true.  The  oath  may  be  ad- 
ministered by  any  of  the  assessors  or  by  their  secretary  or  head 
clerk,  or  by  any  notary  public,  whose  jurat  shall  be  duly  authenti- 
cated by  his  seal,  or,  in  this  commonwealth,  by  a  justice  of  the  peace. 
So  much  of  this  section  as  relates  to  administering  the  oath  shall 
not  apply  to  Boston. 

In  the  statute  of  1785  and  in  the  Revised  Statutes  the  re- 
quirement of  an  oath  was  optional  with  the  assessors;  but  the 
enactment  of  a  statute  in  1853  1  which  provided  that  no  abate- 
ment should  be  made  unless  the  list  was  sworn  to  led  the  com- 
missioners who  drew  up  the  General  Statutes  to  change  "  may  " 
to  "  shall  "  in  the  first  line  of  this  section.  There  was  no  further 
change  until  1891  when  the  provisions  for  the  administration 
of  the  oath  by  the  secretary  or  the  head  clerk  of  the  assessors 
were  added,  and  it  was  also  provided  that  if  the  person  bringing 

is  White  v.  New  Bedford,  160  Mass.  217  (1893). 
1  St.  1909,  c.  517,  §  2,  now  G.  L.  c.  59,  §  61,  infra  page  287. 
1  St.  1853,  c.  319,  now  contained  in  G.  L.  c.  59,  §  61,  infra  page  287,  and 
see  also  Porter  v.  Norfolk  County  Commissioners,  3  Gray  265,  369   (1855). 


262  Taxation   in   Massachusetts 

[G.  L.  c.  59,  §  32 
in  such  list  was  absent  from  the  place  in  which  the  tax  was  to 
be  assessed  during  the  whole  period  when  such  oath  might  be 
made,  the  oath  might  be  administered  by  a  notary  public."  In 
1916  it  was  provided  that  except  in  the  city  of  Boston  the  oath 
might  in  all  cases  be  administered  by  a  notary  public,  or  in  this 
commonwealth  by  a  justice  of  the  peace;  but  in  Boston  the 
oath  cannot  be  administered  by  a  notary  or  justice  unless  the 
taxpayer  is  absent  from  the  city  during  the  whole  period  when 
the  oath  may  be  made.3 

It  has  been  held  that  the  statute  is  mandatory  and  that  a 
list  to  have  any  legal  effect  must  be  sworn  to  in  the  manner 
prescribed  in  the  statute.4  It  was  held  in  decisions  made  prior 
to  1909  that  the  exact  wording  was  immaterial  if  it  sufficiently 
appeared  that  the  person  bringing  in  the  list  took  oath  that  the 
list  contained  a  statement  of  all  his  taxable  property,5  but  it 
would  seem  that  the  statute  of  1909  prohibiting  an  abatement 
unless  the  list  was  upon  one  of  the  tax  commissioner's  forms6 
would  render  an  oath  taken  in  different  words  from  those  pre- 
scribed by  the  commissioner  of  no  legal  effect. 

In  the  case  of  a  non-resident,  a  casual  presence  in  the  city 
of  Boston  not  shown  to  have  been  during  business  hours  or 
under  such  circumstances  that  the  taxpayer  might  reasonably 
have  sought  the  assessors  would  not  invalidate  a  list  sworn  to 
by  him  before  a  notary  public.7  A  corporation  owning  taxable 
property  in  Boston,  but  having  its  principal  offices  and  place  of 
business  in  another  town,  might  in  any  case  file  a  return  sworn 
to  before  a  notary  public,  because  such  a  corporation  would  be 
in  the  legal  sense  continuously  absent  from  Boston.8 

Lists  not  Open  to  Public  Inspection 

Section  32.  Such  lists  shall  be  open  to  the  inspection  of  the 
assessors,  their  assistants  and  clerks  and  of  the  commissioner  and 
his  deputies,  the  director  of  the  division  of  local  taxation  and  the 

2  St.  1891,  c.  381. 

3  St.  1916,  c.  130;  St.  1916,  c.  294. 

4  Amherst  College  v.  Assessors  of  Amherst,  193  Mass.  168  (1906). 

5  Charlestown  v.  Middlesex  County  Commissioners,  1  Allen  199  (1861); 
Lanesborough  v.  Berkshire   County  Commissioners,   131    Mass.  424    (1881). 

«  St.  1909,  c.  517,  §  2,  now  contained  in  G.  L.  c.  59,  §  61,  infra  page  287. 

7  Sears  v.  Nahant,  215  Mass.  329  (1913).  This  case  was  decided  when  the 
law  as  to  administration  of  the  oath  was  in  force  in  the  whole  state,  but  the 
decision   would  seem   applicable   to   Boston  now. 

8  Massachusetts  General  Hospital  v.  Belmont,  233  Mass.  190,  210  (1919). 


Assessment  op  Local  Taxes  263 

G.  L.  c.  59,  §  34] 

supervisors  of  assessors;  but  so  much  of  the  lists  as  shows  the  details 

of  the  personal  estate  to  that  of  no  other  person  except  by  order  of 
a  court.  The  lists  shall  be  preserved  by  the  assessors  until  the  com- 
missioner orders  them  destroyed. 

Lists  of  Property  in  Storage  Warehouses 

Section  33.  All  persons  engaged  in  the  business  of  storing  or 
keeping  merchandise  in  storage  warehouses  shall,  within  ten  days 
after  a  request  therefor  by  the  assessors  of  the  town  where  said 
property  is  so  stored  or  kept,  permit  said  assessors  to  copy  from  their 
records  a  list  of  the  names  and  addresses  of  all  persons  who  appear, 
on  April  first  in  such  year,  to  have  any  such  property  stored  or  kept 
in  any  such  warehouse;  but  such  persons  shall  not  be  required  to 
furnish  lists  of  persons  having  property  stored  in  warehouses  which 
is  composed  of  imported  goods  in  original  packages  and  owned  by 
the  importer,  or  of  goods  that  have  been  received  for  export  trade. 
Failure  to  comply  with  this  section  shall  be  punished  by  a  fine  of 
not  more  than  five  hundred  dollars  or  by  imprisonment  for  not  more 
than  ninety  days. 

Statement  of  Amount  Secured  by  Mortgage 

Section  34.  A  mortgagor  or  mortgagee  of  real  estate  may  bring 
in  to  the  assessors  of  the  town  where  it  lies,  within  the  time  prescribed 
by  the  notice  under  section  twenty-nine,  a  sworn  statement  of  the 
amount  secured  thereon  or  on  each  separate  parcel  thereof,  with  the 
name  and  residence  of  every  holder  of  an  interest  therein  as  mort- 
gagor or  mortgagee.  If  such  property  is  situated  in  two  or  more 
places,  or  if  a  recorded  mortgage  includes  two  or  more  estates  or 
parts  of  an  estate  as  security  for  one  sum,  such  statements  shall 
include  an  estimate  of  the  interest  of  the  mortgagee  in  each  estate  or 
part  thereof.  The  assessors  shall,  from  such  statement  or  otherwise, 
ascertain  the  proportionate  interests  of  the  mortgagor  or  mortgagee 
respectively  in  said  estates,  and  shall  assess  the  same  accordingly. 
If,  in  any  year,  such  statement  is  not  brought  in,  the  tax  for  that  year 
on  such  real  estate  shall  not  be  invalid  merely  for  the  reason  that 
the  interest  of  the  mortgagee  therein  has  not  been  assessed  to  him. 

The  occasion  of  the  enactment  of  this  statute  and  the  effect 
it  produced  have  already  been  discussed.1    The  assessors  may 

1  G.  L.  c.  59,  §  12,  supra  page  230. 


264  Taxation   in   Massachusetts 

[G.  L.  c.  59,  §  35 

if  they  see  fit  make  a  separate  assessment  of  the  interests  of 
the  mortgagor  and  the  mortgagee,  although  no  statement  under 
this  section  was  filed.2 

Lists  to  be  Taken  as  True.  —  Inquiries  by  Assessors 

Section  35.  Assessors  shall  receive  as  true,  except  as  to  valu- 
ation, the  list  brought  in  by  each  person,  unless,  on  being  thereto 
required  by  the  assessors,  such  person  refuses  to  answer  on  oath  all 
necessary  inquiries  as  to  the  nature  and  amount  of  his  property. 

This  statute  as  it  appeared  in  1785  provided  that  if  the 
assessors  suspected  any  falsehood  in  a  list  they  might  require 
the  person  bringing  it  in  to  make  oath  that  it  was  true ;  and  such 
list,  being  exhibited  on  oath,  should  be  a  rule  for  that  person's 
proportion  of  the  tax  which  the  assessors  might  not  exceed  un- 
less they  discovered  some  error  therein,  in  which  case  they 
might  assess  such  articles  as  appeared  to  be  kept  back.1  In  the 
Revised  Statutes  of  1836  it  was  altered  so  as  to  provide  that  the 
assessors  should  receive  as  the  true  valuation  of  the  property 
of  each  individual  the  list  if  any  brought  in  by  him  unless  he 
should  on  being  thereto  required  by  the  assessors  refuse  to  make 
oath  that  the  same  was  true.2  It  was  held  in  1846  that  "  valua- 
tion "  in  this  statute,  construed  in  connection  with  the  other 
provisions  of  the  statutes  relating  to  taxation  and  the  general 
system  of  assessment,  did  not  mean  "  appraisement  "  or  "  value," 
but  "  schedule  "  and  that  the  assessors  were  not  bound  by  the 
estimate  of  value  contained  in  a  list.3  Accordingly  >  in  the  next 
revision,  the  statute  was  modified  so  as  to  express  this  interpre- 
tation in  more  apt  phraseology;4  and  as  by  this  time  the  list 
was  required  to  be  supported  by  oath  in  every  case,  refusal 
to  answer  on  oath  necessary  inquiries  was  made  the  condition 
upon  which  the  list  need  not  be  taken  as  true. 

This  statute  for  the  first  time  authorized  assessors  to  in- 
terrogate a  person  after  he  had  filed  a  list,  so  that  they  might 
correct  the  list  or  disregard  it  if  it  appeared  by  an  examination 
of  the  party  that  by  mistake,  oversight  or  erroneous  view  of  the 

2  Sullivan  v.  Boston,  198  Mass.  119  (1908). 

1  St.    1785,    c.    50,    §9. 

2  R.  S.  c.  7,  §  22. 

3  Newburyport  v.  Essex  County  Commissioners,  12  Met.  211   (1816). 

4  G.  S.  c.  11,  §25   (1860). 


Assessment  of  Local  Taxes  265 

G.L.c.  59,  §35] 

law  he  had  not  sworn  to  a  true  list  of  his  property.  If  the  stat- 
ute is  taken  literally  the  assessors  are  bound  by  the  list  if  the 
person  bringing  it  in  answers  all  questions  put  to  him  by  the 
assessors,  even  although  his  answers  disclose  taxable  property 
omitted  from  the  list;  but  the  courts  have  not  permitted  such 
an  absurd  result  and  it  has  been  held  that  assessors  are  not 
bound  by  a  sworn  list  if  it  appears  by  an  examination  of  the 
person  bringing  it  in  that  it  is  not  true.5  Even  if  the  assessors 
know  a  list  to  be  false  they  must  take  it  as  true  unless  by  in- 
quiries, giving  the  person  assessed  a  chance  to  answer  and  ex- 
plain, additional  property  is  disclosed.6  What  is  to  happen  if 
a  person  who  has  knowingly  filed  a  false  list  upon  additional 
inquiries  sticks  to  his  original  falsehood,  although  his  ownership 
of  property  not  included  in  his  list  can  be  conclusively  estab- 
lished by  other  evidence,  has  never  been  decided.  It  has  been 
said  on  the  one  hand  that  the  law  can  safely  trust  the  question 
of  amount  of  property  owned  to  the  oath  of  the  individual,  as 
it  is  something  peculiarly  within  his  knowledge  and  a  false 
statement  would  be  clearly  punishable;7  on  the  other  hand  it 
has  been  intimated  that  the  object  of  the  statute  is  merely  to 
give  a  man  who  has  seasonably  filed  a  list  an  opportunity  to 
be  heard  before  he  is  arbitrarily  assessed  for  additional  prop- 
erty.8 At  any  rate,  refusal  to  answer  the  assessors'  inquiries 
does  not  make  a  man  an  outlaw,  and  although  his  list  is  no 
longer  binding  he  cannot  be  taxed  on  property  he  does  not  own 
and  he  may  have  an  abatement  if  he  is  over-assessed.9  Thus 
one  who  has  filed  a  list  and  then  refuses  to  answer  questions  is 
in  a  better  position  than  one  who  has  filed  no  list  at  all.10 

In  calling  upon  a  person  who  has  brought  in  a  list  to  answer 
inquiries  the  assessors  need  not  follow  the  exact  language  of 
the  statute.  It  is  sufficient  if  they  notify  the  taxpayer  that 
they  are  not  satisfied  with  the  list  and  desire  additional  in- 
formation.11 

5  Hall  v.  Middlesex  County  Commissioners,   10  Allen   100    (1865). 

6  Moors  v.  Street  Commissioners  of  Boston,  134  Mass.  431  (1883);  Chase  v. 
Boston,  193  Mass.  522  (1907);  National  Fireproofing  Co.  v.  Revere,  217  Mass. 
63  (1914). 

7  Newburyport  v.  Essex  County  Commissioners.  12  Met.  211   (1846). 

8  Moors  v.  Street  Commissioners  of  Boston,  134  Mass.  431   (1883). 

9  Wright  v.  Lowell,  166  Mass.  298  (1896). 

10  G.  L.  c.  59,  §  61,  infra  page  287. 

11  Cody  v.  Spear,  214  Mass.  241  (1913). 


266  Taxation   in   Massachusetts 

[G.L.c.  59,  §§36,37 

Doom  of  the  Assessors  in  Absence  of  List 

Section  36.  Assessors  shall  ascertain  as  nearly  as  possible  the 
particulars  of  the  personal  estate,  and  of  the  real  estate  in  possession 
or  occupation,  as  owner  or  otherwise,  of  any  person  not  bringing  in 
such  list,  and  shall  estimate  its  just  value,  according  to  their  best 
information  and  belief. 

Section  37.  Such  estimate  shall  be  entered  in  the  valuation  book, 
and,  except  as  provided  in  section  sixty-one,  shall  be  conclusive  upon 
any  person  not  seasonably  bringing  in  such  list,  unless  he  shows  a 
reasonable  excuse  for  the  omission. 

The  meaning  of  section  thirty-six  is  that,  if  a  person  liable 
to  taxation  does  not  furnish  the  assessors  with  a  list,  he  shall 
be  liable  to  be  assessed  for  such  property  as  in  the  judgment 
of  the  assessors  he  owns  or  possesses ;  not  merely  that  the  assess- 
ors' valuation  shall  be  conclusive  on  the  property  he  really 
owns.1  If  the  assessors  are  unable  to  ascertain  the  particular 
kinds  or  items  of  such  taxable  personal  property  as  they  think 
belongs  to  a  person  subject  to  taxation  who  has  not  brought 
in  a  list,  it  may  be  assessed  in  a  lump  sum  as  "  personal  prop- 
erty "  or  "  personal  estate  "  without  any  enumeration  of  par- 
ticulars.2 

Section  thirty-seven  has  not  been  materially  changed  since 
its  first  enactment  in  1785.  There  is  nothing  in  this  statute 
which  prevents  assessors  from  abating  a  tax  although  no  list  has 
been  carried  in;3  but  later  enactments  which  appear  in  other 
sections  of  the  statutes  now  in  force  prohibited  any  abatement 
unless  a  list  was  at  some  time  filed,  and  if  the  list  was  not  filed 
within  the  time  designated  in  the  assessors'  notice  prohibited 
an  abatement  unless  there  was  reasonable  excuse  for  delay  or 
the  tax  exceeded  by  more  than  fifty  per  cent  the  proper  amount.4 
If  however  the  assessors  refuse  to  abate  a  tax  assessed  under 
the  provisions  of  the  preceding  section  and  find  that  there  was 
no  reasonable  excuse  for  delay  in  filing  the  list  the  person  assessed 

iHarwood  v.  North  Brookfield,  130  Mass.  561  (1881). 

2  Tobey  v.  Wareham,  2  Allen  594  (1861);  Noyes  v.  Hale,  137  Mass.  266 
(1884);  Lamson  Consolidated  Store  Service  Co.  v.  Boston,  170  Mass.  354  (1898). 

3  Winnisimmet  Co.  v.  Assessors  of  Chelsea,  6  Cush.  477  (1850);  Sears  v. 
Nahant,  205  Mass.  558   (1910). 

4  G.  L.  c.  59,  §  61,  injra  page  287. 


Assessment  of  Local  Taxes  267 

G.  L.  c.  59,  §  38] 

is  without  remedy  unless  he  can  convince  the  county  commis- 
sioners or  the  superior  court  that  the  rinding  of  the  assessors  as 
to  reasonable  excuse  was  wrong.5 

The  Annual  Valuation  of  Taxable  Property 

Section  38.  The  assessors  of  each  city  and  town  shall  at  the  time 
appointed  therefor  make  a  fair  cash  valuation  of  all  the  estate,  real 
and  personal,  subject  to  taxation  therein,  and,  in  cities,  the  assessors 
may,  in  any  year,  divide  the  city  into  convenient  assessment  districts. 

In  the  colonial  statutes  and  in  the  annual  tax  acts  of  the 
provincial  period  provision  was  made  for  the  valuation  of  do- 
mestic animals  at  fixed  amounts1  regardless  of  their  actual 
value,  and  it  was  not  until  1777  that  the  assessors  were  directed 
to  assess  the  inhabitants  "  according  to  the  just  value  of  their 
whole  personal  estate."  2  In  1853  the  requirement  was  added 
that  the  valuation  be  a  "  fair  cash  "  valuation  and  in  1889  the 
assessors  of  cities  were  authorized  to  divide  wards  into  assess- 
ment districts. 

The  fair  cash  value  of  property  is  ordinarily  the  equivalent 
of  its  fair  market  value;3  the  fair  cash  value  of  property  having 
a  market  is  best  ascertained  by  finding  the  price  at  which  it  will 
sell  in  the  market.4  The  statute  refers  to  the  price  which  some 
one  will  pay,  and  not  the  intrinsic  value  of  the  property  or  the 
price  at  which  the  court  thinks  people  ought  to  have  been  will- 
ing to  buy  or  sell  the  property.5  In  valuing  property  commonly 
bought  and  sold,  such  as  active  bank  stocks,  or  cotton  or  coal, 
all  that  is  necessary  is  to  ascertain  the  market  price  of  such  ar- 
ticles on  the  tax  day,  with  perhaps  a  correction  to  offset  the 
fleeting  results  of  a  temporary  panic  or  boom  as  the  result  of 

5  G.  L.  c.  59,  §  64,  infra  page  293. 

1  Anc.  Chart.  70;  St.  1776-7,  c.  13.  §  3.    See  also  supra  page  87. 

2  St.    1777-8,   c.    13,    §  2. 

3  Frequently  in  support  of  principles  of  valuation  of  general  application 
decisions  in  tax  cases  and  in  eminent  domain  cases  are  cited  indifferently;  the 
fair  cash  value  of  the  one  is  the  equivalent  of  the  fair  market  value  of  the  other. 
Massachusetts  General  Hospital  v.  Belmont,  233  Mass.  190,  206  (1919).  For 
the  principles  of  valuation  as  applied  in  eminent  domain  proceedings  see  Nichols, 
Eminent  Domain,  2d.  ed.,  §  §  217-223  inc.  and  §  §  444-459  inc. 

4  National  Bank  of  Commerce  v.  Bedford,  155  Mass.  313,  315  (1892); 
National  Bank  of  Commerce  v.  New  Bedford,  175  Mass.  257,  262  (1900); 
Massachusetts  General  Hospital  v.  Belmont,  233   Mass.  190,  206   (1919). 

5  National  Bank  of  Commerce  v.  New  Bedford,  175  Mass.  257,  262  (1900). 


268  Taxation   in   Massachusetts 

[G.  L.  c.  59,  §  38 
a  little  latitude  which  the  adjective  "  fair "  injects  into  the 
requirements  of  the  statute.6 

In  the  case  of  real  estate,  valuation  for  purposes  of  taxation 
is  no  such  simple  matter.  The  dominant  intention  of  the  stat- 
ute is  that  property  shall,  for  purposes  of  taxation,  be  assessed 
at  its  fair  cash  value  considered  with  reference  to  all  the  uses 
to  which  it  is  adapted  and  to  which  it  may  be  put  by  any  owner.7 
The  fair  cash  value  of  a  tract  of  land  is  ascertained  by  a  con- 
sideration of  all  those  elements  which  make  it  attractive  for 
valuable  use  to  one  under  no  compulsion  to  purchase  but  yet 
willing  to  buy  for  a  fair  price.  An  actual  sale  is  the  best  test 
of  value  but  is  not  conclusive.  No  two  pieces  of  real  estate 
are  exactly  alike,  so  that  the  price  at  which  one  lot  is  sold  is 
no  sure  test  of  the  value  of  another,  and  the  price  at  which 
even  the  lot  under  consideration  has  sold  is  not  necessarily  de- 
cisive as  to  its  fair  cash  value,  for  either  the  buyer  or  the  seller 
may  have  been  under  peculiar  compulsion.  With  respect  to 
land  values,  the  assessors  must  however  be  guided  chiefly  by 
their  knowledge  of  sales  and  must  exercise  their  best  judgment 
in  comparing  the  availability  of  the  piece  of  land  which  they 
are  assessing  with  other  similar  parcels  in  the  neighborhood  with 
the  prices  paid  for  which  they  are  familiar. 

In  assessing  buildings,  the  assessors  may  be  guided  by  the 
sale  of  similar  buildings,  but  they  may  also  be  assisted  by  knowl- 
edge of  the  original  cost,  with  allowance  for  depreciation,  re- 
placement cost,  and  the  rents  derived  from  the  building, 
if  leased  for  a  use  to  which  it  is  fairly  adapted.  All  of  these 
elements  may  be  considered,  but  no  one  of  them  is  de- 
cisive.8 The  real  test  is  the  fair  cash  value,  and  other  factors 
are  important  only  as  throwing  light  on  that  value. 

In  valuing  large  factories  or  the  plants  of  public  service 
corporations,  which   are  not   commonly  bought  and   sold   for 

6  National  Bank  of  Commerce  v.  New  Bedford,  175  Mass.  257,  262  (1900). 
The  market  value  of  stock  in  a  corporation  owning  only  real  estate  and  ma- 
chinery and  owing  no  debts  is  not  conclusive  of  the  value  of  the  real  estate 
and  machinery.  Chicopee  v.  Hampden  County  Commissioners,  16  Gray  38 
(1860). 

7  Tremont  &  Suffolk  Mills  v.  Lowell,  163  Mass.  283,  288  (1895) ;  Troy 
Cotton  &  Woolen  Manufactory  v.  Fall  River,  167  Mass.  517,  523  (1897); 
Blackstone  Manufacturing  Co.  v.  Blackstone,  200  Mass.  82,  39  (1908);  Lodge 
v.  Swampscott,  216   Mass.  260,   263    (1913). 

8  Essex  Co.  v.  Lawrence,  214  Mass.  79  (1913). 


Assessment  of  Local  Taxes  269 

G.  L.  c.  59,  §  38] 

cash,  the  assessors  must  very  largely  be  guided  in  reaching  the 
fair  cash  value  by  knowledge  of  original  cost  and  replacement 
cost,  with  allowance  for  depreciation,  and  productive  power, 
but  the  real  test  is  still  the  cash  value,  assuming  a  purchaser 
could  be  found.9 

More  difficult  questions  arise  in  the  case  of  structures  which 
serve  the  purpose  for  which  they  are  used,  but  would  have 
little  or  no  value  for  sale.  The  law  contemplates  the  taxation 
of  railroad  stations  and  other  property  of  public  service  com- 
panies, with  respect  to  which  there  is  no  right  of  sale  in  the 
ordinary  sense.10  So  also  there  are  classes  of  private  property 
which  have  a  market  or  cash  value  small  or  almost  negligible 
as  compared  with  their  cost  or  their  utility  to  their  owners. 
A  church,  a  private  school,  a  clubhouse,  or  even  a  private  dwell- 
ing of  unusual  design  is  often  impossible  to  dispose  of  except 
at  a  great  sacrifice  when  no  longer  needed  by  the  parties  who 
erected  it.  Such  property  cannot  be  taken  for  public  use  without 
compensation  based  on  the  usefulness  of  the  property  to  the 
owner;  but  the  court  has  held  that  in  dealing  with  property 
of  this  class  for  purposes  of  taxation,  the  full  amount  which 
could  have  been  secured  for  the  property  in  the  market  by 
competition  among  probable  buyers  cannot  be  increased  by 
considerations  of  value  to  the  owner  alone.11 

In  determining  the  value  of  the  property,  real  and  personal, 
used  in  a  particular  commercial  enterprise,  the  assessors  may 
take  into  consideration  the  use  to  which  the  property  is  put, 
as  one  of  the  uses  to  which  it  is  adapted,  and  value  the  par- 
ticular articles  of  property  accordingly;  but  after  this  has  been 
done  and  the  entire  taxable  estate  assessed  by  means  of  the 
assessment  of  the  component  parts,  the  assessors  cannot  also 
assess  an  additional  sum  on  the  enterprise  as  a  whole,  as  a  going 
concern  or  as  a  money-producing  instrumentality.12 

The  valuation  of  tangible  personal  property  which  the  tax- 
payer has  acquired  for  his  personal  use,  such  as  household  fur- 
niture, is  extremely  difficult.  Such  property  is  seldom  sold 
except  under  circumstances  which  negative  a  determination  of 

9  Essex  Co.  v.  Lawrence,  214  Mass.  79  (1913) ;  Massachusetts  General  Hos- 
pital v.  Belmont,  233  Mass.  190,  207  (1919). 

10  Supra  pages  217,  246.     Infra  page  270. 

11  Massachusetts  General  Hospital  v.  Belmont,  233  Mass.  190,  209   (1919). 
13  National   Fireproofing  Co.  v.  Revere,  217   Mass.  63   (1914). 


270  Taxation  in   Massachusetts 

[G.  L.  c.  59,  §§  39-42  inc. 

fair  market  value.  To  the  owner  furniture  may  be  as  useful 
as  if  new,  while  if  sold  to  a  second  hand  dealer  it  might  bring 
but  a  fraction  of  its  original  price.  In  the  absence  of  a  better 
test,  an  allowance  for  depreciation  from  the  original  cost  based 
on  the  expected  life  of  the  articles  is  as  satisfactory  a  method 
as  any;  and  in  case  of  motor  vehicles  also  such  a  test  is  com- 
monly adopted,  although  such  articles  have  a  ready  market, 
and  in  the  absence  of  special  circumstances  in  regard  to  the 
use  or  condition  of  a  particular  automobile,  is  probably  as  sat- 
isfactory a  test  as  can  be  devised. 

Valuation  of  Property  of  Telephone  and  Telegraph 

Companies 

Section  39.  The  valuation  at  which  the  machinery,  poles,  wires 
and  underground  conduits,  wires  and  pipes  of  all  telephone  and  tel- 
egraph companies  shall  be  assessed  by  the  assessors  of  the  respec- 
tive towns  where  such  property  is  subject  to  taxation  shall  be 
determined  annually  by  the  commissioner,  subject  to  appeal  to  the 
board  of  appeal  from  decisions  of  the  commissioner  of  corporations 
and  taxation,  as  hereinafter  provided,  and  shall  by  him  be  certified 
to  the  assessors  on  or  before  June  fifteenth.  A  board  of  assessors 
aggrieved  by  a  valuation  made  by  the  commissioner  under  this  section 
may,  within  ten  days  after  notice  of  his  valuation,  apply  to  said  board 
of  appeal.  Said  board  shall  hear  and  decide  the  subject  matter  of  such 
appeal  and  give  notice  of  its  decision  to  the  commissioner  and  to 
the  assessors;  and  its  decision  as  to  the  valuation  of  the  property 
shall  be  final  and  conclusive,  except  as  provided  in  section  seventy- 
three,  relative  to  abatements.  The  assessors  shall,  in  the  manner 
provided  by  law,  assess  the  machinery,  poles,  wires  and  underground 
conduits,  wires  and  pipes  of  all  telephone  and  telegraph  companies 
as  certified  and  at  the  value  determined  by  the  commissioner  or  by 
the  board  of  appeal,  and  such  assessment  by  a  board  of  assessors 
shall  be  deemed  to  be  a  full  compliance  with  the  oath  of  office  of  each 
assessor  and  a  full  performance  of  his  official  duty  with  relation  to 
the  assessment  of  such  property,  except  as  provided  in  the  following 
section. 

Section  40.  Every  board  of  assessors  shall,  as  and  when  re- 
quired by  the  commissioner,  furnish  him  with  any  and  all  information 
in  its  knowledge  or  possession  relating  to  any  property,  the  value  of 
which  he  is  required  to  determine  by  the  preceding  section. 


Assessment  of  Local  Taxes  271 

G.  L.  c.  59,  §  43] 

Section  41.      Every  telephone  or  telegraph  company  owning  any 

property  required  to  be  valued  by  the  commissioner  under  section 
thirty-nine  shall  annually,  on  or  before  a  date  determined  by  the 
commissioner  but  in  no  case  later  than  June  first,  make  a  return  to 
the  commissioner  signed  and  sworn  to  by  its  treasurer.  This  return 
shall  be  in  the  form  and  detail  prescribed  by  the  commissioner  and 
shall  contain  all  information  which  he  shall  consider  necessary  to  en- 
able him  to  make  the  valuations  required  by  section  thirty-nine,  and 
shall  relate,  so  far  as  is  possible,  to  the  situation  of  the  company  and 
its  property  on  April  first  of  the  year  when  made.  Property  returned 
to  the  commissioner  as  herein  provided  need  not  be  included  in  the  list 
required  to  be  filed  by  a  telephone  or  telegraph  company  under  sec- 
tion twenty-nine. 

Section  42.  If  any  company,  or  any  treasurer  thereof,  shall  in 
any  year  refuse  or  neglect  to  make  the  return  required  by  the  pre- 
ceding section,  the  commissioner  shall  estimate  the  value  of  the  prop- 
erty of  the  company,  and  in  such  case  the  value  determined  by  the 
commissioner  shall  not  be  less  than  twice  the  value  determined  in  the 
previous  year. 

The  Valuation  List  of  the  Assessors 

Section  43.  The  assessors  shall  make,  on  the  books  furnished 
under  section  forty-five,  a  list  of  the  valuation  and  the  assessment 
thereon,  in  the  following  manner:  In  separate  columns  the  valuation 
of  the  stock  in  trade  of  each  person,  the  number  and  value  of  his 
live  stock  and  the  valuation  of  machinery  used  in  manufacture.  In 
another  column,  marked  "AH  other  ratable  estate,"  the  aggregate 
valuation  of  all  the  other  personal  estate  shall  be  entered.  The  total 
amount  of  the  taxable  personal  property  shall  be  shown,  but  without 
other  detail  or  specification  than  is  provided  herein.  Before  the  taxes 
are  committed  for  collection  they  shall  deposit  the  books,  or  an 
attested  copy  thereof,  in  their  office  or,  if  there  is  no  office,  with  their 
chairman,  for  public  inspection. 

Compliance  by  the  assessors  with  the  provisions  of  this  and 
the  following  sections  is  not  necessarily  essential  to  the  validity 
of  a  tax.  All  those  provisions  which  are  intended  for  the  secur- 
ity of  the  citizen,  for  ensuring  an  equality  of  taxation  and  to 
enable  everyone  to  know  with  reasonable  certainty  for  what 
polls  and  for  what  real  and  personal  estate  he  is  taxed  and  for 


272  Taxation   in    Massachusetts 

[G.L.c.  59,  §43 

what  all  those  who  are  liable  with  him  are  taxed  are  conditions 
precedent,  and  if  they  are  not  observed  he  is  not  legally  taxed; 
but  many  regulations  are  made  by  statute,  designed  for  the  in- 
formation of  assessors  and  other  officers  and  intended  to  promote 
method,  system  and  uniformity  in  the  modes  of  procedure,  the 
compliance  or  non-compliance  with  which  in  no  respect  affects 
the  rights  of  taxpaying  citizens.  Such  provisions  may  be  con- 
sidered directory  merely,  and  non-compliance  with  them  does 
not  affect  the  validity  of  the  tax.1 

The  colonial  statutes  required  the  assessors  to  prepare  an- 
nually a  written  list  of  the  persons  and  estates  assessed;  and 
the  annual  provincial  tax  statutes  required  the  assessors  to 
make  a  list  of  the  assessment,  "  setting  forth  in  distinct  columns 
against  each  particular  person's  name  how  much  he  or  she  is 
assessed  at  for  polls,  and  how  much  for  houses  and  lands  and 
how  much  for  personal  estate  and  income  by  trade  or  faculty. " 
It  was  not  until  1785  that  the  assessors  were  required  to  deposit 
copies  of  the  lists  in  their  office  for  public  inspection  before 
committing  them  to  the  collector. 

It  was  held  in  1817  that  this  requirement  was  mandatory 
and  that  the  deposit  of  the  list  was  essential  to  the  validity  of 
the  tax;2  but  more  recently  it  was  intimated  by  the  court  that 
the  portion  of  the  statute  relating  to  such  deposit  was  merely 
directory.3  At  any  rate  if  the  validity  of  a  tax  sale  is  questioned 
after  the  lapse  of  many  years  on  the  ground  that  there  is  no 
record  of  the  deposit  of  the  valuation  list,  the  jury  may  be  justi- 
fied in  presuming  that  the  assessors  complied  with  the  law  in 
this  particular,4  and  unless  it  affirmatively  appears  that  the 
assessors  had  an  office  of  their  own,  the  leaving  of  the  valuation 
and  assessment  list  with  their  chairman  is  sufficient.5  There  is 
no  implied  requirement  that  the  list  be  deposited  a  sufficient 
length  of  time  before  it  is  committed  to  the  collector  to  allow 

1  Torrey  v.  Millbury,  21  Pick.  64  (1838).  And  see  also  Sprague  v. 
Bailey,  19  Pick.  346  (1837);  Reynolds  v.  New  Salem,  6  Met.  340  (1843); 
Tobey  v.  Wareham,  2  Allen  594  (1861);  Westhampton  v.  Searle,  127  Mass. 
502  (1879);  Noyes  v.  Hale,  137  Mass.  266  (1881);  Bemis  v.  Caldwell,  143  Mass. 
299  (1887).  As  to  contesting  the  validity  of  a  tax  by  impeaching  the  election 
of  the  assessors  who  assessed  it,  see  Sudbury  v.  Heard,  103  Mass.  543  (1870). 

2  Blossom  v.  Cannon,  14  Mass.  177  (1817). 

3  Westhampton  v.  Searle,  127  Mass.  502  (1879). 

4  Blossom  v.  Cannon,  14  Mass.  177  (1817). 

5  Westhampton  v.  Searle,  127  Mass.  502   (1879). 


Assessment  of  Local  Taxes  273 

G.L.c.  59,  §§44,45] 

the  inhabitants  to  inspect  it  before  such  committal;  and  a  tax 
is  not  rendered  invalid  because  the  list  was  not  deposited  until 
the  day  before  it  was  so  committed.6 

The  provisions  of  the  statutes  as  to  the  form  of  warrants 
and  tax  lists  and  the  place  where  the  lists  shall  be  deposited 
are  intended  for  the  benefit  of  the  taxpayer,  so  far  as  they  are 
not  meant  merely  for  statistical  purposes.  As  to  all  other  per- 
sons they  are  directory  merely  and  not  conditions  precedent. 
Failure  of  the  assessors  to  comply  with  them  might  be  a  good 
excuse  to  the  collector  for  not  collecting  the  tax;  but  if  he  has 
collected  the  tax  without  objection  from  the  taxpayers  such 
failure  would  not  justify  him  in  refusing  to  turn  the  money 
over  to  the  town.7 

The  valuation  list  made  and  kept  by  the  assessors  in  the 
performance  of  their  official  duty  is  evidence  of  the  facts  stated 
therein  in  all  cases  relating  to  the  assessment  and  collection  of 
the  tax;8  but  by  itself  and  when  recently  made  it  is  not  evidence 
in  a  controversy  between  private  parties  as  to  the  location 9  or 
ownership10  of  land,  or  to  show  that  a  certain  resident  of  the 
town  was  a  person  of  no  financial  responsibility.11 

The  valuation  and  assessment  lists  are  public  records  within 
the  meaning  of  the  statute  relating  to  the  forgery  of  public 
records,  and  the  offense  of  forgery  of  public  records  may  consist 
of  the  alteration  of  a  material  part  of  the  assessment  list,  by 
which  another  may  be  defrauded.12 

Contents  of  the  Valuation  List 

Section  44.  The  list  shall  exhibit  the  valuation  and  assessment 
of  the  polls  and  estates  of  the  inhabitants  assessed ;  and  the  valuation 
and  assessment  of  the  estates  of  non-resident  owners,  and  shall  con- 
tain the  names  of  the  non-resident  owners  of  the  property  assessed,  or 
such  description  of  them  as  can  be  given,  their  places  of  abode,  if 

«  Tobey  v.  Wareham,  2  Allen  594   (1861). 

'  Sandwich  v.  Fish,  2  Gray  298   (1854). 

8  Thus,  on  a  question  of  adverse  possession,  valuation  lists  are  admissible 
to  show  that  a  person  did  or  did  not  pay  taxes  on  the  property  in  question. 
Enfield  v.  Woods,  212  Mass.  547   (1912). 

6  Commonwealth  v.  Hefroh,  102  Mass.  148  (1869). 

10  Commonwealth  v.  Quinn,  222  Mass.  505  (1916). 

11  Commonwealth  v.  Quinn,  222  Mass.  505  (1916). 

12  Commonwealth  v.  Segee,  218  Mass.  501   (1914). 


274  Taxation-  in    Massachusetts 

[G.L.c.  59,  §§44,45 
known,  the  description  of  their  estate,  the  true  value  of  such  estate, 

and  the  tax  thereon. 

Section  45.  The  commissioner  shall  provide  each  city  and  town, 
on  or  before  April  first  annually,  suitable  books  for  the  use  of  the 
assessors  in  the  assessment  of  taxes,  which  shall  contain  blank  col- 
umns, with  uniform  headings  for  a  valuation  list,  and  blank  tables 
for  aggregates,  in  the  following  form;  provided,  that  in  lieu  of  the 
valuation  list  provided  for  in  this  section  and  the  preceding  two 
sections,  the  assessors  of  any  city  may,  with  the  assent  of  the  com- 
missioner, prepare  a  valuation  list  upon  books  furnished  by  the  city 
and  in  such  form  as  the  commissioner  shall  approve,  and  that,  for 
the  separate  listing  of  poll  taxes  under  section  four  of  chapter  sixty, 
such  portion  of  the  books  furnished  by  the  commissioner  as  he  shall 
determine  may  contain  only  the  first  three  columns  of  said  form. 


Valuation  List  fob  the 


April  1,  19 


a 
5 

■ 

.   1 

3 

a 

S3 

i 

a 

73 

9 

_fi 
B 
S3 

CO 

S3 

9 

o 

■ 

E 
41 

a 

41 

S3 
-W 
S3 

E 

S3 

1 

Names  and  Residences  of 

A 

JB 

J3 

'a 

73 
41 

■ 
3 

41 

1 

41 
S3 

2fi 

a 
o 

S3 

E 

4? 

a. 

08 

I 

"3 

,        Persons  assessed. 
\  (.Give  street  and  number  of 

P. 

o 

>> 

a 

a 

£> 

a 

E 

41 

41    * 

fel 

—   . 

U   43 

2 
& 

a 

residence.) 

S3 
M 

at 

4-> 

M 

■ 

a 

8 

j3 

S3 

—   41 

3 

41 

2-3 

o  S3 

•si 

*S 

h 

41 

,2 

■ 
S3 
o 

$4 
a-0 

s  . 
—  £ 

°3 

.     41 

03  <9 

JO  o 

1  s- 

a) 

41 

O 

41 

c3g 
41   S3 

-1 

S3  5 
41   £ 

o 

M 

aS 

s 

S3 

a  a 

£* 

3 

3  -^ 

—     03 

S3 

O 

S3 

s3>" 

S3 

S3  41 

2 

H 

> 

> 

fe 

> 

> 

«? 

H 

• 

>> 

£> 
73 

O 
41 

02    S 

'54 

"c3 

S3 

£3 
O 

Jj 

> 

J* 

Number  of  acres  or  feet 

o 

41 

E 

B 

41 

■ 
41 
73 

1 

in  each  lot  of  land. 

"43 
41 
fi 
S3 

S3 

& 

41 

41 

a 
^2 

>>o 

a 

S3 

-»-> 

o 

id 

■ 

a 
73 

S3  41  a 

>>"0  8 

J3 
Q 
S3 
41 

4i 
G 

U- 

O 
41 

3 

■ 

M 
4> 

"s3 
41 

a 

3| 

d 

o   . 

*1 

■ 

i-1 

3 

JB 

O        . 

73 

.S3  B 

9     >> 

OJ3X! 
«    8  73 

.t?  41  43 

Acres. 

Feet. 

43 

S 
S3 
73 

o 

8 

41 
_3 

"3   . 

S3 
> 

41 
•tf 
S3 
M 

a 
o 

M 

S3 

41 

-3  E 

41  a 

C     a 

41 

—  S3 

41 

p^ 

-3  73 

TZ  S3 

3  0 

2  * 

S3~" 

8*8  S 

J3 
"si 

OS'S 

B 

B 

S3 

O 

S3  g 

O  * 

« 

> 

Q 

> 

H 

«3 

H 

H 

G.L.c.  59,  §§44,45] 


Assessment  of  Local  Taxes  275 

table  of  aggregates. 

Fob  the  of  of  Polls,  Property,  Taxes,  etc.,  as  assessed  April  1,  19 


a  o 
"o  a 

j.  o 

B 

E 

a 
o 

£ 

"o 

a 
a 

"o 

a 

H 

a 

03 
E 

08  a 

O    X 

a 

1 

S 

CO 

a  to 

■     o 

S 

£ 

03   OJ 

n 

•2-S 

5  5 

0 

OT3 

c 

5-3 

03    CO 

03 

03   co 

J3  °     • 

_    CU 

t.     h 

*-  % 

t-  Si 

i—  <u 

umbe 
assess 
erty. 

umbe 
dents 
propc 

co  go 
•9  I 

3    CO 

3  05 

_:  <u 
c  co 
S  co 

5  03 

0 

o 

M 
j) 

o— , 

ll 

.2  o 

03  <0 

CD  03 

3  *^ 

-=:  co 
o3  a> 

otal  v 
sessed 
1,  19 

z  ■ 

Z 

Z 

z 

H 

> 

> 

H 

Individuals. 

Individuals. 

t  On  prop- 
erty. 

Excluding  resi- 
dent bank  stock. 

Buildings,  exclud- 
ing land. 

*  All  others. 

*A11  others 

For  poll  tax 
only. 

Resident  bank 
stock. 

Land,  excluding 
buildings. 

Total. 

1 

Total 

Total. 

Total. 

Total. 

Taxf orstate,  county  and 
city  or  town  purposes, 
including  overlayings. 


Dollars. 


On  personal  estate 


On  real  estate. 


On  polls. 


Total. 


Cts. 


a 

H 

03 


o: 

m 


o 

.3 


Z 


Eg 

3    GO 

Z 


•°  CO 

C  CO 

3  to 

z 


^°c5 

3~  OS 


l"S 
eg 

3  co 

z 


M 

9 


O   CD 

s§ 

3^3 
Z 


S-8 


*-  03 
II 


0) 
3 

"oS  . 

*0  co 

C  co 

03  „, 


4)  ■ 
3  * 


Number. 


Value. 


*  Firms,  corporations,  associations,  institutions,  trustees,  etc. 
t  On  property;  the  total  of  the  first  two  columns. 


Each  parcel  of  real  estate  assessed  must  be  described  in  the 
valuation  list.  It  is  not  however  intended  that  the  description 
should  be  as  accurate  in  detail  as  is  required  for  the  purposes  of 
a  conveyance.  It  is  enough  if  it  fairly  designates,  for  the  infor- 
mation of  those  interested,  the  property  intended  to  be  taxed.1 

1  Thus  it,  was  held  in  Westhampton  v.  Searle,  127  Mass.  502  (1879),  that  an 
entry  in  the  valuation  list  of  "two  houses,  one  barn"  and  the  number  of  acres 
of  mowing,  tillage,  pasture,  wood  and  unimproved  lots  was  not  so  imperfect 


276  Taxation   in   Massachusetts 

[G.L.c.  59,  §§44,45 

Oral  testimony  may  be  admitted  to  aid  an  imperfect  description, 
and  to  show  to  what  particular  property  an  ambiguous  desig- 
nation was  intended  to  apply,  but  it  cannot  be  introduced  to 
correct  a  description  which  does  not  taken  by  itself  apply  to 
the  land  alleged  to  be  intended.  A  tax  which  does  not  appear 
on  the  assessors'  books  cannot  be  established  by  oral  testimony.2 

When  separate  and  distinct  parcels  belong  to  the  same 
owner  they  are  considered  as  distinct  subjects  of  taxation  and 
must  be  separately  valued  and  assessed.3  When  an  entire  tract  of 
land  belongs  to  a  single  owner,  the  mere  fact  that  he  has  divided 
the  land  into  small  lots  for  the  purposes  of  sale 4  or  has  erected 
more  than  one  house  upon  it5  would  not  require  the  assessors 
to  make  a  separate  valuation  of  each  lot;  but  where  lands  are 
separated  either  by  the  use  or  purpose  to  which  they  are  de- 
voted, or  by  the  mode  of  their  occupation,  or  are  discon- 
nected in  location,  even  if  they  are  all  owned  or  occupied 
by  the  same  person,  a  valid  assessment  cannot  be  laid  upon  an 
entire  valuation  of  all  the  lots.6  Lands  owned  in  severalty  by 
different  persons  cannot  be  included  in  a  joint  assessment  to 
the  owners  however  they  are  used.7 

The  requirement  that  buildings  be  valued  separately  from 
the  land  is  imposed  only  for  the  purpose  of  securing  a  more 
specific  description  and  valuation  of  each  class  and  parcel  of 
property  of  which  the  real  estate  consists 8  and  does  not  make 
the  tax  on  all  real  estate  of  an  individual  other  than  an 
integral  tax;  and  while  a  failure  to  assess  separate  parcels 
separately  would  result  in  the  loss  of  a  lien  on  any  of  the  parcels 
and  would  justify  the  assessors  in  abating  the  tax,  as  improperly 
assessed,  if  the  person  assessed  was  taxable  on  any  one  of  the 
parcels  he  could  not  treat  the  assessment  as  void  in  an  action 


as  to  invalidate  the  tax;  and  in  Roberts  v.  Welsh,  192  Mass.  278  (1906),  that 
a  description  of  a  house  and  lot  referring  to  the  house  by  its  number  on  the 
street  and  the  lot  by  designation  stating  the  number  of  square  feet  was  suffi- 
cient; and  in  Larsen  v.  Dillenschneider,  235  Mass.  56  (1920),  that  a  description 
by  reference  to  a  lot  by  number  on  a  plan  on  file  in  the  assessors'  office  was 
sufficient. 

2  Massachusetts  General  Hospital  v.  Somerville,  101  Mass.  319,  328  (1869). 

3  Hayden  v.  Foster,  13  Pick.  492  (1833). 

4  Jennings   v.   Collins,   99   Mass.   29    (1868). 
-    6  Bemis  v.  Caldwell,  143  Mass.  299  (1887). 

6  Jennings  v.  Collins,  99  Mass.  29  (1868).    See  also  Hayden  v.  Foster,  13 
Pick.  492   (1833). 

7  Jennings  v.  Collins,  99  Mass.  29  (1868). 

s  Massachusetts  General  Hospital  v.  Somerville,  101  Mass.  319,  32S  (1869). 


Assessment  of  Local  Taxes  277 

G.  L.  c.  59,  §  46] 

by  the  collector  to  recover  the  tax  or  in  an  action  to  recover 
back  the  tax  after  payment  upon  duress  or  under  protest.9 

The  classification  of  certain  kinds  of  personal  property  ap- 
pears to  be  intended  chiefly  for  statistical  purposes,  and  a  per- 
son assessed  for  his  personal  estate  generally  without  any 
classification  or  itemization  whatever  cannot  on  that  account 
defeat  the  tax,  especially  if  he  has  failed  to  file  any  list  of  his 
taxable  property.1 


10 


Directions  to  Assessors  in  Making  Lists 

Section  46.  The  assessors  shall  enter  in  the  books  so  furnished 
the  valuation  and  assessment  of  the  polls  and  estates  of  the  persons 
assessed,  as  directed  in  the  headings  of  the  various  columns  and 
as  follows: 

Stock  in  trade  shall  include  all  goods,  wares  and  merchandise  at 
home  or  abroad,  of  ratable  estate,  whether  paid  for  or  otherwise. 
Machinery  shall  include  steam  engines. 

In  cotton  and  linen  factories  state  number  of  spindles  and  looms 
used  in  each. 

In  woollen  factories  state  number  of  sets  of  cards  used  in  each. 

State  the  value  of  each  building  described  including  therein  water 
wheels  but  excluding  land  and  water  power  and  machinery  used  in 
the  building. 

The  requirement  that  machinery  shall  be  valued  separately 
is  partly  for  statistical  purposes  and  partly  because  machinery 
has  to  some  extent  a  local  character  which  makes  it  a  subject  of 
local  taxation.  It  is  not  taxed  as  real  estate  but  as  personal 
property.  The  land,  buildings  and  water  power  are  real  estate 
and  are  taxed  accordingly.1  The  statute  does  not  mean  that 
water  power  even  if  appurtenant  to  mills  cannot  be  taxed  at  all, 
but  that  in  valuing  the  buildings  the  value  of  the  water  power 
and  the  machinery  should  not  be  included.  Water  power  appur- 
tenant to  and  used  in  connection  with  land  is  valued  and  taxed 
with  the  land.2    The  provision  as  to  stock  in  trade  at  home  and 

9  Schwartz  v.  Boston,  151  Mass.  226  (1890).  And  see  also  G.  L.  c.  60 
§  98,  infra  page  400. 

10  Tobey  v.  Wareham,  2  Allen  594   (1861) ;  Noyes  v.  Hale,  137   Mass.  266 
(1884);  Lamson  Consolidated  Store  Service  Co.  v.  Boston,  170  Mass.  354  (1898). 

1  Hamilton  Manufacturing  Co.  v.  Lowell,  185  Mass.  114   (1904). 

2  Lowell  v.  Middlesex  County  Commissioners,  152  Mass.  372  (1890). 


278  Taxation   in   Massachusetts 

[G.L.c.  59,  §§47,48 

abroad  should  be  construed  in  connection  with  the  statute  ex- 
empting from  taxation  merchandise  owned  by  inhabitants  of 
this  state  situated  in  another  state.3     . 

Tables  of  Aggregates 

Section  47.  The  assessors  shall  fill  up  the  table  of  aggregates 
by  an  enumeration  of  the  necessary  items  included  in  the  lists  of 
valuation  and  assessments,  and  shall  annually,  on  or  before  October 
first,  deposit  in  the  office  of  the  commissioner  an  attested  copy  of 
the  same,  containing: 

First,  The  number  of  residents  assessed  on  property,  specifying 
the  number  of  individuals  and  the  number  of  firms,  corporations, 
associations,  institutions,  trustees,  and  so  forth.  Second,  The  num- 
ber of  non-residents  assessed  on  property,  specifying  the  number  of 
individuals  and  the  number  of  firms,  corporations,  associations,  insti- 
tutions, trustees,  and  so  forth.  Third,  The  whole  number  of  persons 
assessed,  specifying  the  number  assessed  for  a  tax  on  property  and 
the  number  assessed  for  a  poll  tax  only.  Fourth,  The  number  of 
polls  assessed.  Fifth,  The  tax  on  each  poll.  Sixth,  The  value  of 
personal  estate  assessed,  specifying  the  value  of  the  same  excluding 
resident  bank  stock,  and  the  value  of  resident  bank  stock.  Seventh, 
The  value  of  real  estate  assessed,  specifying  the  value  of  buildings 
exclusive  of  land  and  of  land  exclusive  of  buildings.  Eighth,  The 
total  valuation  of  assessed  estate  in  the  town.  Ninth,  The  tax  for 
state,  county  and  city  or  town  purposes,  including  overlayings,  speci- 
fying the  amount  assessed  on  personal  estate,  on  real  estate  and  on 
polls.     Tenth,    The  rate  of  total  tax  per  one  thousand  dollars. 

Also  the  number  of  the  following  kinds  of  animals  assessed. 
Eleventh,  horses.  Twelfth,  cows.  Thirteenth,  sheep.  Fourteenth, 
neat  cattle,  other  than  cows.  Fifteenth,  swine.  Sixteenth,  the 
number  of  dwelling  houses  assessed.  Seventeenth,  the  number  of 
acres  of  land  assessed.  Eighteenth,  the  number  and  value  of  fowl 
assessed. 

Section  48.  Annually  on  or  before  January  fifteenth,  assessors 
shall  report  to  the  commissioner  in  the  form  prescribed  for  tables 
of  aggregates  by  the  two  preceding  sections  the  facts  as  to  any  and 
all  assessments  made  between  December  tenth  and  twentieth  pre- 
ceding, both  inclusive,  under  section  seventy-five. 

3  G.  L.  c.  59,  §  5,  cl.  19,  supra  page  210. 


Assessment  of  Local  Taxes  279 

G.L.c.  59,  §§49-52  inc.] 

Further  Requirements  as  to  Valuation  List 

Section  49.  The  assessors,  except  those  of  Boston,  on  or  before 
October  first,  nineteen  hundred  and  twenty-two,  and  in  every  third 
year  thereafter,  shall  deposit  in  the  office  of  the  commissioner,  in 
books  to  be  by  him  provided  for  the  purpose,  a  copy  of  the  assessors' 
valuation  books  of  those  years,  to  be  by  them  certified  under  oath. 
This  shall  not  excuse,  in  such  years,  the  filing  of  a  separate  copy  of 
the  table  of  aggregates  under  section  forty-seven. 

Section  50.  The  books  provided  by  the  commissioner  for  the 
use  of  assessors  shall  contain  a  copy  of  this  section,  of  the  seven 
preceding  sections  and  of  sections  eighty-four  and  ninety-four,  and 
such  certificates  as  are  required  by  law  to  be  signed  by  the  assessors, 
with  such  explanatory  notes  as  he  considers  necessary  to  secure  uni- 
formity of  returns  under  the  several  headings. 

Section  51.  The  assessors  shall  enter  upon  the  valuation  list, 
in  the  appropriate  columns  after  the  enumeration  of  the  persons  and 
estates  liable  to  taxation  therein  contained,  a  statement  and  descrip- 
tion of  all  the  property  and  estate  and  the  fair  ratable  value  thereof, 
situated  in  their  respective  towns,  or  which  would  be  taxable  there 
but  for  the  provisions  of  the  third,  fourth  and  eleventh  clauses  of 
section  five,  with  the  names  of  the  persons  or  corporations  owning 
the  same  and  the  purpose  for  which  it  is  used,  which  are  exempted 
from  taxation  by  the  provisions  of  law  aforesaid,  with  a  reference  to 
the  law  by  which  such  exemption  is  allowed. 

Section  52.  The  assessors,  or  other  persons  authorized  to  assess 
taxes,  shall,  at  the  end  of  said  valuation  list,  subscribe  and  take  the 
following  oath: 

We,  the  assessors  (or  other  persons  so  authorized,  as  the  case  may 
be,)  of  ,  do  severally  and  solemnly  swear  that  the  fore- 

going list  is  a  full  and  true  list  of  the  names  of  all  persons  known  to 
us,  who  are  liable  to  taxation  in  ,  (here  insert  the 

name  of  the  city  or  town,)  during  the  present  year,  and  that  the  real 
and  personal  estate  contained  in  said  list,  and  assessed  upon  each 
person  in  said  list,  is  a  full  and  accurate  assessment  upon  all  the 
property  of  each  person,  liable  to  taxation,  at  its  full  and  fair  cash 
value,  according  to  our  best  knowledge  and  belief. 

Failure  to  take  and  subscribe  the  foregoing  oath  shall  not  invalidate 
a  tax  otherwise  legally  assessed ;  but  whoever  assesses  taxes  in  a  town 
without  having  taken  and  subscribed  the  same  shall  be  punished  by  a 
fine  of  ten  dollars. 


280  Taxation   in   Massachusetts 

[G.L.  c.  59,  §§53-56  inc. 

The  penalty  for  failure  to  comply  with  section  forty-nine  is 
a  fine  of  not  more  than  two  hundred  dollars.1 

The  oath  at  the  end  of  the  valuation  list  was  amended  in 
1853  when  assessors  were  required  to  assess  property  at  its  "  fair 
cash  value  "  to  accord  with  the  statute ;  and  in  other  particu- 
lars it  was  made  more  specific. 

Collector's  List  and  Warrant 

Section  53.  The  assessors  shall,  within  a  reasonable  time,  com- 
mit the  tax  list  with  their  warrant  to  the  collector  of  taxes,  and, 
if  there  is  a  fire,  water,  light  or  improvement  district  in  the  town, 
they  shall  commit  to  him  a  separate  list  and  warrant  for  the  district 
taxes.  If  no  collector  has  been  chosen,  they  shall  commit  such  list 
with  their  warrants,  to  a  constable;  or,  if  there  is  no  constable,  to 
the  sheriff  or  his  deputy;  but  the  assessors  of  a  town  shall  not 
commit  a  tax  list  to  the  collector  until  the  bonds  of  such  collector 
and  of  the  town  treasurer  have  been  given  and  approved  as  required 
by  law. 

Section  54.  The  tax  list  committed  to  the  collector  shall  be, 
in  substance,  as  follows: 


Names  and  Residences. 

(Give  street  and 

number  of  residence.) 


No.  of  Polls. 


Poll  Tax. 


Tax  on 
Real 

Estate. 


Tax 

on  Personal 
Property. 


Total. 


Time  when 
paid. 


NON-RESIDENTS. 


Names. 


Residences,  if  known. 


Tax. 


Section  55.  The  warrant  shall  specify  the  duties  of  the  collector 
as  prescribed  by  law  in  the  collection  of  taxes,  the  times  when  and 
the  person  to  whom  he  shall  pay  them,  shall  be  substantially  in  the 
form  heretofore  used,  and  need  not  be  under  seal. 

Section  56.  If  a  warrant  issued  for  the  collection  of  taxes  is  lost 
or  destroyed,  the  assessors  may  issue  a  new  warrant  therefor,  which 
shall  have  the  same  force  and  effect  as  the  original  warrant. 

While  the  colonial  statutes  required  the  issuance  of  a  war- 
rant to  the  constable  directing  him  to  collect  a  tax,1  it  was  not 
until  1701  that  the  form  of  the  warrant  was  prescribed  by  stat- 

1  G.  L.  c.  59,  §  94,  infra  page  319. 
1  Anc.  Chart,  p.  71. 


Assessment  of  Local  Taxes  281 

G.L.c.  59,  §§53-56  inc.] 

ute.a  In  1785  the  form  was  again  fixed  by  statute,3  and  no  other 
form  has  since  been  substituted  by  specific  enactment;  but  as 
the  warrant  is  supposed  to  specify  the  duties  of  the  collector 
as  prescribed  by  law  in  the  collection  of  taxes,  the  form  of  the 
warrant  ordinarily  used  has  changed  from  time  to  time  as  the 
statutes  relating  to  the  collection  of  taxes  have  been  amended 
and  altered.4 

The  warrant  should  be  signed  by  all,  or  by  a  majority,  of 
the  assessors,  for  if  it  is  signed  by  one  for  or  in  behalf  of  the 
others  it  is  always  open  to  question  in  subsequent  proceedings 
whether  the  others  did  in  fact  assent  to  the  issuance  of  the 
warrant  and  authorize  it  to  be  signed  in  their  behalf,  and  a 
failure  to  establish  such  assent  and  authority  would  be  fatal 
to  the  validity  of  any  action  taken  under  the  warrant.5  The 
form  established  in  1785  concluded  with  the  words  "  given  under 
our  hands  and  seals  "  but  it  was  held  in  1827  that  a  warrant 
concluding  "  given  under  our  hands  "  and  actually  sealed  was 
valid;6  and  it  was  provided  in  the  Revised  Statutes  that  a  seal 
should  no  longer  be  necessary. 

The  tax  list  must  accompany  the  warrant,  proceed  from  the 
same  source  and  be  committed  to  the  collector  as  part  of  the 
documents  constituting  his  authority  for  the  collection  of  the 
taxes  of  the  year,  but  there  is  no  requirement  that  the  warrant 
be  physically  annexed  to  the  list.7  An  additional  tax  assessed 
in  accordance  with  the  statute 8  upon  property  omitted  from 
the  annual  assessment  is  properly  entered  on  the  tax  list  of  the 
collector  although  it  is  entered  in  a  separate  book  or  on  a 
separate  piece  of  paper  with  a  new  warrant.9  There  is  no 
obligation  upon  the  collector  to  return  the  warrant  to  the  assess- 
ors after  he  has  completed  the  collection  of  the  tax  by  virtue 
of  the  authority  contained  in  it.10 

The  provisions  of  the  statute  relating  to  the  form  of  the  tax 

2  St.  1701-2,  c.  8. 

3  St.  1785,  c.  50.  §  6.  This  form  may  still  be  used  in  spite  of  the  changes 
in  the  statutes,  Westhampton  v.  Searle,  127  Mass.  502,  506  (1879). 

4  For  the  form  now  in  use,  see  infra,  Appendix,  Form  No.  4. 

5  Reynolds  v.  New  Salem,  6  Met.  340  (1843). 
e  Bradford  v.  Randall,  5  Pick.  495  (1827). 

7  Barnard  v.  Graves,  13  Met.  85  (1847). 

8  G.  L.  c.  59,  §  75,  infra  page  304. 

*  Noyes  v.  Hale,  137  Mass.  266  (1884). 
10  Howard  v.  Proctor,  7  Gray  128  (1856). 


282  Taxation   in   Massachusetts 

[G.L.c.  59,  §§57,58 
list  and  the  inclusion  of  different  items  of  taxation  in  distinct 
columns  are  probably  merely  directory;11  and  the  requirement 
that  the  warrant  shall  specify  the  duties  of  the  collector  is 
clearly  only  directory.  A  collector  might  be  excused  from  ex- 
ecuting a  defective  warrant,  but  if  he  proceeds  to  collect  the 
tax  in  compliance  with  all  the  requirements  of  the  statutes  his 
action  cannot  be  attacked  directly  or  collaterally  upon  the 
ground  that  his  warrant  did  not  state  these  requirements  with 
sufficient  accuracy  or  fulness.12 

When  a  collector  acts  in  pursuance  of  a  warrant  from  the 
assessors,  and  the  assessors  have  jurisdiction  of  the  subject- 
matter  and  the  warrant  is  regular  on  its  face,  the  collector  is 
not  bound  to  examine  into  the  legality  of  the  previous  pro- 
ceedings and  is  protected  by  the  warrant  from  liability  for 
executing  it  in  the  manner  prescribed  by  law.13 

When  the  same  persons  are  selectmen  and  assessors,  the 
issuance  of  a  warrant  by  them  as  assessors  when  the  office  of 
collector  is  vacant  to  a  person  who  has  not  received  an  appoint- 
ment as  temporary  collector  is  not  in  itself  such  an  appointment, 
for  in  such  case  the  warrant  was  not  issued  by  the  selectmen 
in  their  capacity  of  selectmen,  and  the  statutes  do  not  contem- 
plate the  issuance  of  a  warrant  to  a  person  who  has  not  already 
been  elected  or  appointed  collector.1 


14 


Interest  and  Discount  on  Taxes 

Section  57.  Taxes  shall  be  payable  in  every  city,  town  and  dis- 
trict in  which  the  same  are  assessed,  and  bills  for  the  same  shall  be 
sent  out,  not  later  than  October  fifteenth  of  each  year,  unless  by  ordi- 
nance, by-law  or  vote  of  the  city,  town  or  district,  an  earlier  date 
of  payment  is  fixed.  On  all  taxes  remaining  unpaid  after  the  expira- 
tion of  seventeen  days  from  said  October  fifteenth,  or  after  such 
longer  time  as  may  be  fixed  by  any  city,  town  or  district  which  fixes 
an  earlier  date  for  payment,  but  not  exceeding  thirty  days  from  such 

11  Blackburn  v.  Walpole,  9  Pick.  97  (1829). 

12  King  v.  Whitcomb,  1  Met.  328  (1840);  Barnard  v.  Graves,  13  Met.  85 
(1847);  Westhampton  v.  Searle,  127  Mass.  502  (1879);  Leominster  v.  Conant, 
139  Mass.  384  (1885). 

13  See  on  this  subject  injra  page  396,  and  upon  the  effect  of  informalities 
in  the  tax  list  and  warant  upon  liability  on  the  collector's  bond,  G.  L.  c.  60  §  13, 
injra  page  326. 

14  Phelon  v.  Granville,  140  Mass.  386  (1886). 


Assessment  of  Local  Taxes  283 

G.L.c.  59,  §§57,58] 

earlier  date,  interest  shall  be  paid  at  the  following  rates  computed 
from  the  date  on  which  the  taxes  become  payable:  At  the  rate  of 
six  per  cent  per  annum  on  all  taxes  and,  by  way  of  penalty,  at  the 
additional  rate  of  two  per  cent  per  annum  on  the  amount  of  all  taxes 
in  excess  of  two  hundred  dollars  assessed  to  any  taxpayer,  in  any  one 
city  or  town,  if  such  taxes  remain  unpaid  after  the  expiration  of  three 
months  from  the  date  on  which  they  became  payable,  but  if,  in 
any  case,  the  tax  bill  is  sent  out  later  than  the  day  prescribed,  interest 
shall  be  computed  only  from  the  expiration  of  such  seventeen  days 
or  said  longer  time.  In  no  case  shall  interest  be  added  to  taxes  paid 
prior  to  the  expiration  of  seventeen  days  from  the  date  when  they 
are  payable,  nor  shall  any  city  or  town  so  fix  an  earlier  date  of  pay- 
ment and  longer  time  within  which  taxes  may  be  paid  without  interest 
as  would  permit  the  payment  of  any  taxes  without  interest 
after  November  first  of  the  year  in  which  they  are  due.  Bills  for 
taxes  assessed  under  section  seventy-five  shall  be  sent  out  not  later 
than  December  twenty-sixth,  and  such  taxes  shall  be  payable  not 
later  than  December  thirty-first.  If  they  remain  unpaid  after  that 
date,  interest  shall  be  paid  at  the  rates  above  specified,  computed 
from  December  thirty-first  until  the  day  of  payment,  but  if,  in  any 
case,  the  tax  bill  is  sent  out  later  than  December  twenty-sixth,  said 
taxes  shall  be  payable  not  later  than  ten  days  from  the  date  of  the 
bill,  and  interest  shall  be  computed  from  the  fifteenth  day  following 
the  date  when  the  tax  becomes  due.  In  all  cases  where  interest  is 
payable  it  shall  be  added  to  and  become  a  part  of  the  tax. 
Section  58.      Towns  shall  not  allow  any  discount  on  taxes. 

It  was  not  until  1873  that  interest  was  under  any  circum- 
stances collected  from  a  delinquent  taxpayer.  Under  the  con- 
ditions prevailing  in  the  earlier  times,  when  the  taxes  for  each 
year  were  turned  over  to  a  collector  upon  the  best  terms  that 
the  town  could  make  and  the  fees  and  charges  were  retained 
by  the  collector,  the  recovery  of  interest  was  denied,  the  court 
saying  that  to  allow  interest  in  such  a  case  would  be  giving  a 
bounty  upon  the  negligence  of  collectors.1  In  more  recent  times 
in  cities  and  the  larger  towns,  when  the  collector  is  usually  a 
salaried  official  and  taxes  are  frequently  so  large  that  the  use 
of  the  money  required  to  pay  them  for  as  long  a  period  as  it 
proves  possible  to  delay  payment  is  worth  a  considerable  sum 

1  Danforth  v.  Williams,  9  Mass.  324   (1812). 


284  Taxation   in    Massachusetts 

[G.L.c.  59,  §§57,58 

to  the  person  assessed,  the  imposition  of  interest  after  a  certain 
date  is  the  only  practical  means  of  enforcing  prompt  payment 
of  taxes  and  of  throwing  the  loss  caused  by  delay  upon  the 
delinquent  taxpayer.  Until  1913  the  statutory  provision  for 
interest  on  overdue  taxes  was  applicable  only  if  the  city  or 
town  so  voted,  and  if  no  such  action  had  been  taken  no  interest 
could  be  recovered  even  after  demand;2  the  collection  of  taxes 
being  governed  wholly  by  statute,  the  general  principles  which 
allow  interest  on  an  overdue  obligation  after  demand  would  have 
no  application. 

In  1913  it  was  provided  that  in  every  city  or  town  taxes 
should  be  payable  not  later  than  the  fifteenth  day  of  October, 
and  that  on  taxes  remaining  unpaid  after  the  first  of  November 
interest  should  be  paid  from  October  15.3  The  effect  of  this 
statute  was  not  only  to  make  interest  recoverable  in  every  case 
without  a  vote  of  the  city  or  town,  but  also  to  create  a  liability 
for  seventeen  days'  interest  as  soon  as  the  tax  became  delinquent. 
Other  changes  were  made  in  19 15,4  1916  5  and  19 18,6  and  in 
1920  7  the  statute  was  placed  in  its  present  form. 

Even  when  the  collector  is  not  paid  a  fixed  salary  but  obtains 
his  compensation  from  commissions  upon  the  sums  collected, 
the  town  is  entitled  to  insist  upon  the  collection  of  the  sums 
of  interest  due  from  individual  taxpayers  and  the  turning  over 
of  such  sums  to  its  treasurer  by  the  collector;8  but  when  the 
collector  undertakes  to  pay  over  the  amount  of  the  whole  tax 
list  on  a  certain  date  and  carries  out  his  agreement  although 
he  has  not  collected  all  the  taxes,  he  is  entitled  to  retain  the 
interest  he  subsequently  collects  from  the  delinquent  taxpayers.9 

2  Thus  if  a  city  council  made  provision  for  interest  but  failed  to  specify 
when  the  taxes  were  due,  no  interest  could  be  lawfully  collected,  Kelly  v. 
O'Rourke,  232  Mass.  168  (1919). 

3  St.  1913,  c.  688,  §  1 ;  and  see  as  to  unpaid  taxes  of  previous  years, 
St.  1913,  c.  824. 

4  St.  1915,  c.  237,  §  21,  provided  that  interest  might  be  at  a  rate  not  less 
than  6  nor  more  than  10  per  cent  as  the  city  council  or  town  should  vote. 

5  St.  1916,  c.  103,  provided  that  tax  bills  should  be  sent  out  on  or  before  Octo- 
ber 15  and  if  not  paid  within  fifteen  days  should  bear  interest  from  the  time 
when  sent  out;  it  also  made  provision  for  interest  on  bills  sent  out  late  and 
bills   for    omitted    assessments. 

6  St.  1918,  c.  190  provided  that  interest  should  be  added  after  the  bill  was 
overdue  seventeen  days. 

7  St.  1920,  c.  460  added  the  provision  as  to  the  additional  interest  of  2% 
when  the  tax  remains  unpaid  for  three  months. 

8  Needham  v.  Morton,  146  Mass.  476,  480   (1888). 
•  Needham  v.  Morton,  146  Mass.  476   (1888). 


Assessment  of  Local  Taxes  285 

G.L.c.  59,  §59] 

In  1815  it  was  enacted  that  a  town  might  provide  for  the 
allowance  of  discount  on  taxes  paid  voluntarily  before  they  were 
due;10  and  this  provision  remained  in  force  until  1913,  when 
the  provision  now  in  force  was  adopted.11 

Abatement  by  Assessors 

Section  59.  A  person  aggrieved  by  the  taxes  assessed  upon  him 
may,  within  six  months  after  the  date  of  his  tax  bill,  apply  to  the 
assessors  for  an  abatement  thereof ;  and  if  they  find  him  taxed  at  more 
than  his  just  proportion,  or  upon  an  assessment  of  any  of  his  property 
in  excess  of  its  fair  cash  value,  they  shall  make  a  reasonable  abatement. 
A  tenant  of  real  estate  paying  rent  therefor  and  under  obligation 
to  pay  more  than  a  moiety  of  the  taxes  thereon  may  apply  for  such 
abatement. 

The  most  advantageous  means  of  contesting  an  illegal  or 
excessive  tax,  provided  the  person  assessed  has  complied  with 
the  necessary  preliminary  steps,  is  to  petition  the  assessors  for 
its  abatement,  and,  if  necessary,  to  pursue  the  procedure  pro- 
vided by  statute  for  appeal  from  their  decisions;  for  in  one 
proceeding  the  question  whether  the  tax  is  to  stand  in  whole 
or  in  part  or  not  at  all  can  be  settled  without  unnecessary  delay.1 

There  is  no  other  method  of  contesting  a  tax  on  the  ground 
that  it  is  excessive  in  amount,  provided  the  assessors  have  juris- 
diction of  the  subject-matter,2  act  with  integrity  and  fidelity3 
and  commit  a  warrant  to  the  collector  that  is  regular  on  its 
face.4 

The  proceedings  before  the  assessors  are  informal,  and  the 
application  for  an  abatement  need  not  be  in  writing.5  No  per- 
son can  apply  for  an  abatement  unless  the  tax  was  assessed 
upon  him,  except  a  tenant  of  real  estate  under  the  conditions 
prescribed  by  the  statute;  consequently  the  purchaser  of  a 
parcel  of  land  upon  which  there  is  a  lien  for  an  unpaid  tax 
cannot  apply  to  have  the  tax  abated.6 

10  St.   1815,   c.   130,   §  §  2,  4. 

11  St.    1913,    c.   688.    §3. 

1  Milford  Water  Co.  v.  Hopkinton,  192  Mass.  491,  498  (1906);  Welch  v. 
Boston,  211  Mass.  178  (1912). 

2  See  G.  L.  c.  60,  §  98,  infra  page  405. 

3  See  G.  L.  c.  59,  §  87,  infra  page  314. 

4  See  supra  page  282,  and  infra  page  326. 

5  Page  v.  Melrose.  186  Mass.  361   (1904). 

6  Hough  v.  North  Adams,  196  Mass.  290  (1907);  Dunham  v.  Lowell,  200 
Mass.  468  (1909). 


286  Taxation   in    Massachusetts 

[G.  L.  c.  59,  §  60 

If  there  is  a  change  in  the  composition  of  the  board  of  assess- 
ors between  the  assessment  of  a  tax  and  the  hearing  upon  its 
abatement,7  the  abatement  is  to  be  passed  upon  by  the  new 
board.  Assessors  have  no  power  to  abate  a  tax  after  their  term 
of  office  has  expired.8 

Assessors  have  a  right  to  abate  on  their  own  motion  and  with- 
out the  filing  of  any  petition  a  tax  on  a  person  not  properly  as- 
sessable or  one  whom  they  consider  unable  to  contribute  to  the 
public  charges.9 

An  application  for  abatement  must  be  filed  within  six  months 
of  the  date  of  the  tax  bill.  If  the  bill  was  not  dated  but  the 
postmark  on  the  envelope  shows  when  it  was  sent  out  the 
date  is  sufficiently  established  and  the  application  for  abatement 
must  be  made  within  six  months  from  that  date.10  A  postal 
card  sent  by  the  collector  to  the  person  assessed,  stating  the 
amount  due,  for  what,  from  whom  and  to  whom  due  and  when 
and  where  to  be  paid  is  a  tax  bill  within  the  meaning  of  the 
statute.11 

Record  of  Abatements 

'  Section  60.  Every  board  of  assessors  shall  keep  a  record  of  all 
abatements  of  taxes.  The  record  of  abatement  of  the  whole  or  any 
part  of  any  tax  shall  show  plainly  the  following  details,  viz: 

First,    The  name  or  title  in  which  the  tax  stands  assessed. 

Second,    The  year  in  which  the  tax  was  assessed. 

Third,     The  total  amount  of  the  tax. 

Fourth,    The  date  when  the  abatement  was  made. 

Fifth,     The  sum  abated  on  poll  tax. 

Sixth,    The  sum  abated  on  personal  estate. 

Seventh,    The  sum  abated  on  real  estate. 

Eighth,     The  total  sum  abated. 

Ninth,  In  case  of  an  abatement  to  put  into  effect  a  statutory 
exemption,  exact  reference  to  the  statutory  provision  under  which 
the  exemption  was  granted  and  in  all  other  cases  a  statement  of  the 
cause  or  reason  for  the  abatement. 

»  Carleton  v.  Ashburnham,  102  Mass.  348  (1869). 

8  Cheshire  v.  Howland,  13  Gray  321   (1859). 

9  Gordon  v.  Sanderson,  165  Mass.  375  (1896). 

10  Amherst  College  v.  Assessors  of  Amherst,  193  Mass.  168  (1906). 

11  Amherst  College  v.  Assessors  of  Amherst,  193  Mass.  168  (1906). 


Assessment  of  Local  Taxes  287 

G.L.c.  59,  §61] 

If  the  record  of  an  abatement  is  made  as  a  part  of  the  record  of 

a  meeting  of  the  board  of  assessors  it  shall  be  signed  by  the  clerk  or 
secretary  of  the  board  for  that  meeting;  otherwise  by  a  majority  of 
the  board. 

Effect  of  Failure  to  File  List 

Section  61.  A  person  shall  not  have  an  abatement,  except  as 
otherwise  provided,  unless  he  has  brought  in  to  the  assessors  the  list 
of  his  estate  as  required  by  section  twenty-nine.  A  tenant  of  real 
estate  paying  rent  and  under  obligation  to  pay  more  than  a  moiety  of 
the  taxes  thereon,  may  have  an  abatement  although  no  such  list  was 
brought  in.  If  such  list  is  not  filed  within  the  time  specified  in  the 
notice  required  by  section  twenty-nine,  no  part  of  the  tax  assessed 
on  the  personal  estate  shall  be  abated  unless  the  applicant  shows 
to  the  assessors  a*  reasonable  excuse  for  the  delay  or  unless  such  tax 
exceeds  by  more  than  fifty  per  cent  the  amount  which  would  have 
been  assessed  on  such  estate  if  the  list  had  been  seasonably  brought 
in,  and  in  such  case  only  the  excess  over  such  fifty  per  cent  shall 
be  abated.  If  the  applicant  was  not  required  by  said  notice  to  include 
his  real  estate  in  said  list,  and  has  not  done  so,  he  shall,  if  he  seeks 
an  abatement  of  the  tax  on  his  real  estate,  file  with  his  application 
a  list  of  his  real  estate,  with  an  estimate  of  the  fair  cash  value  of 
each  parcel.  In  Boston,  said  list  shall  be  verified  as  provided  by 
section  two  of  chapter  two  hundred  and  ninety-four  of  the  General 
Acts  of  nineteen  hundred  and  sixteen.  In  other  cities,  and  in  towns, 
it  shall  be  verified  as  provided  in  section  thirty-one  of  this  chapter. 

Except  as  provided  by  section  seventy-one,  no  abatement  of  a 
tax  assessed  on  personal  estate  shall  be  made  until  such  list  is  in 
the  possession  of  the  assessors. 

The  statutes  do  not  make  it  obligatory  to  bring  in  a  list 
or  make  it  a  criminal  offense  to  refuse  to  do  so.  A  person  may 
at  his  option  decline  giving  in  his  list  and  leave  the  assessors 
to  ascertain  the  amount  of  his  taxable  property;  but  if  he  does 
so  he  tacitly  submits  himself  to  their  valuation  and  assessment 
and  of  necessity  waives  all  those  exceptions  which  he  could 
take  only  on  condition  of  handing  in  a  list.  He  submits  him- 
self to  what  is  called  in  some  of  the  earlier  statutes  the  doom  of 
the  assessors.  He  may  find  an  advantage  in  this,  because  the 
assessors  according  to  their  best  information  and  belief  may 
assess  him  for  less  property  than  he  is  liable  for.    The  statute 


288  Taxation   in    Massachusetts 

[G.L.c.  59,  §61 
was  founded  upon  the  equitable  consideration  that  he  shall  not 
take  this  chance  and  afterward,  if  it  is  unfavorable,  have  all 
the  same  benefit  as  if  he  had  given  in  a  true  statement  for  the 
information  of  the  assessors  in  the  first  instance.1 

In  the  colony  laws  there  does  not  seem  to  have  been  any 
provision  for  the  furnishing  of  lists  by  the  taxable  inhabitants, 
and  it  was  provided  that  if  a  taxpayer  could  satisfy  the  assessors 
that  he  was  "  overvalued  "  he  could  be  "  eased  "  by  them,  and 
in  the  early  part  of  the  provincial  period  the  law  as  to  the  right 
of  abatement  seems  to  have  continued  substantially  the  same. 
But  as  early  as  1715  the  annual  or  special  tax  acts  provided 
that  the  assessors  before  making  the  assessment  should  call 
upon  the  inhabitants  to  bring  in  true  and  perfect  lists  of  their 
polls  and  ratable  estates  and  imposed  a  fine  upon  any  one  who 
should  bring  in  a  false  list;  and  this  form  of  legislation  con- 
tinued for  a  number  of  years.  The  bringing  in  of  such  list  how- 
ever was  not  made  a  condition  precedent  to  a  right  to  an 
abatement.  In  1735  it  was  provided  that  if  any  person  neglected 
to  bring  in  a  list  it  should  be  lawful  for  the  assessors  to 
assess  such  person  in  their  sound  judgment  and  discretion, 
and  it  was  subsequently  provided  that  their  estimate  should 
be  conclusive  upon  him  unless  he  had  a  reasonable  excuse  for 
his  omission.2  Probably  the  assessors,  at  least  before  the  com- 
mittal of  their  warrant  to  the  tax  collector,  could  have  abated 
a  tax  if  they  saw  fit,  although  no  list  was  filed;3  and  the  law 
continued  without  substantial  change  in  this  regard  until  1853 
when  it  was  enacted  that  no  abatement  should  be  made  of  the 
taxes  assessed  upon  any  individual  until  he  should  have  filed 
with  the  assessors  a  list  subscribed  by  him  of  his  estate  liable 
to  taxation  and  made  oath  that  it  was  a  full  and  accurate  list 
of  the  same  according  to  his  best  knowledge  and  belief.  Under 
this  statute  it  was  held  that  the  discretion  of  assessors  to  abate 
taxes  was  cut  down  so  that  they  could  no  longer  abate  taxes 
unless  a  list  was  filed.4  Such  list  however  might  be  filed  any 
time  before  the  abatement.5    If  filed  after  an  appeal  from  the 

1  Lincoln  v.  Worcester,  8  Cush.  55  (1851).  For  a  learned  and  exhaustive 
study  of  the  development  of  the  statutes  upon  this  subject,  see  the  opinion  of 
Hammond  J.,  in  Sears  v    Nahant,  205  Mass.  558   (1910). 

2  See  G.  L.  c.  59,  §  37,  supra  page  266. 

3  Winnisimmet  Co.  v  Assessors  of  Chelsea,  6  Cush.  477,  481  (1850) ;  Sears 
v.  Nahant,  205  Mass.  558  (1910). 

4  Porter  v.  Norfolk  County  Commissioners,  5  Gray  365  (1855). 
6  Porter  v.  Norfolk  County  Commissioners,  5  Gray  365  (1855). 


Assessment  of  Local  Taxes  289 

G.L.c.  59,  §61] 

assessors'  decision  it  was  too  late  and  the  assessors  never  had 
jurisdiction  to  abate  the  tax.6 

In  1865  the  power  of  the  assessors  to  abate  the  taxes  of 
inhabitants  who  were  dilatory  in  filing  lists  was  still  further 
restricted.  Thereafter  if  a  person  assessed  had  not  filed  his 
list  within  the  time  specified  in  the  assessors'  notice  and  did 
not  have  reasonable  excuse  for  the  delay,  his  tax  could  not  be 
abated  by  the  assessors  below  a  sum  equal  to  the  proper  amount 
plus  fifty  per  cent.  That  the  assessors  had  no  jurisdiction  to 
abate  a  tax  in  any  degree,  no  matter  what  excuse  there  was 
for  delay  in  filing  the  list,  if  the  list  was  not  filed  before  they 
acted  upon  the  petition  for  abatement  (or,  perhaps,  before  the 
petition  was  filed),  was  the  rule  before  1865 ;7  and  it  was  not 
modified  by  the  legislation  of  that  year.8 

In  1898  it  was  held  that  the  inhabitants  of  the  town  in 
which  the  tax  was  assessed  were  the  only  persons  required  to 
file  lists  within  the  time  specified  by  the  assessors,  and  accord- 
ingly a  list  filed  by  a  non-resident  taxpayer  before  the  petition 
for  abatement  was  seasonably  filed.9  In  1903  the  statute  was 
amended  so  as  to  require  assessors  to  give  notice  to  all  persons 
subject  to  taxation  in  their  respective  cities  and  towns  to  bring 
in  lists,10  and  since  the  enactment  of  that  statute  non-residents 
who  are  subject  to  taxation  in  any  city  or  town  have  the  same 
obligations  in  regard  to  lists  as  taxable  inhabitants.11  The 
obligation  to  return  a  list  extends  to  corporations12  and  to  all 
persons  whether  in  a  representative  or  an  individual  capacity 
who  hold  property  liable  to  taxation.13  The  requirement  of  an 
oath  is  mandatory  and  the  filing  of  a  sworn  list  is  a  necessary 
condition  precedent  to  an  abatement.14 

6  Otis  Co.  v.  Ware,  8  Gray  509  (1857). 

7  Winnisimmet  Co.  v.  Assessors  of  Chelsea,  6  Cush.  477  (1850) ;  Porter  v. 
Norfolk  County  Commissioners,  5  Gray  365  (1855);  Otis  Co.  v.  Ware,  8  Gray 
509  (1857). 

8  Charlestown  v.  Middlesex  County  Commissioners,  101  Mass.  87  (1869); 
Amherst   College  v.  Assessors  of  Amherst,  193  Mass.  168  (1906). 

9  Hopkins  v.  Reading,  170  Mass.  568  (1898).  A  non-resident  was  bound  to 
file  a  list  before  the  petition  for  abatement  was  acted  on.  Otis  Co.  v.  Ware, 
8  Gray  509  (1857). 

1(>  St.  1903,  c.  157. 

11  Atlantic   Maritime   Co.  v.   Gloucester,  214  Mass.  348    (1913). 

12  Otis  Co.  v.  Ware,  8  Gray  509  (1857);  Atlantic  Maritime  Co.  v. 
Gloucester,  214  Mass.  348   (1913). 

13  Vaughn  v.  Street  Commissioners  of  Boston,  154  Mass.  143  (1891). 

14  Amherst  College  v.  Assessors  of  Amherst,  193  Mass.  168  (1906). 


290  Taxation   in    Massachusetts 

[G.  L.c.  59,  §61 

There  were  a  number  of  decisions  prior  to  1894  in  which 
more  or  less  informal  statements  were  sustained  as  sufficient 
lists.15  In  1894  the  statute  now  found  in  section  five  of  chapter 
fifty-eight  was  enacted  requiring  the  tax  commissioner  to  pre- 
scribe forms  for  lists 16  and  in  1909  it  was  made  clear  that  the 
use  of  the  tax  commissioner's  forms  was  a  condition  precedent 
to  an  abatement.17 

If  a  person  files  a  list  in  good  faith,  but  omits  certain  items 
of  property  accidentally  or  in  the  belief  that  it  is  not  taxable,  he 
is  not  precluded  from  an  abatement;18  but  a  list  is  not  a  "  true 
list "  within  the  meaning  of  section  twenty-nine  if  a  large 
amount  of  property  is  wilfully  omitted  on  the  ground  that  it 
is  not  taxable  when  it  is  well  established  that  it  is  taxable.19 
If  a  taxpayer  includes  in  his  list  certain  items  that  are  not  tax- 
able he  is  not  estopped  from  asking  that  the  tax  on  such  items 
be  abated;20  and  he  is  not  precluded  by  filing  a  list  in  a  certain 
town  from  contending  that  he  is  not  taxable  in  such  town  at 
all.21 

The  courts  have  never  attempted  a  comprehensive  definition 
of  what  would  constitute  reasonable  excuse  for  delay  in  bringing 
in  a  list.22    The  assessors  cannot  waive  the  statutory  require- 

15  Charlestown  v.  Middlesex  County  Commissioners,  1  Allen  199  (1861); 
Great  Barrington  v.  Berkshire  County  Commissioners,  112  Mass.  218  (1873); 
Lanesborough  v.  Berkshire  County  Commissioners,  131  Mass.  424  (1881).  Mere 
reference  to  an  old  list  was  not  however  sufficient.  Winnisimmet  Co.  v.  Assessors 
of   Chelsea,   6  Cush.  477    (1850). 

16  Supra  page  165. 

17  G.  L.  c.  59,  §  29,  supra  page  258.  The  requirement  that  a  person  seek- 
ing an  abatement  of  the  tax  on  his  real  estate  should  file  a  list  of  his  real  estate, 
with  an  estimate  of  the  value  of  each  parcel,  was  expressly  repealed  by  St.  1918, 
c.  50,  §  2,  and  has  never  been  re-enacted,  but  in  some  mysterious  manner  it 
has  reappeared  in  the  General  Laws. 

18  Great  Barrington  v.  Berkshire  County  Commissioners,  112  Mass.  218 
(1873);  Wright  v.  Lowell,  166  Mass.  298  (1896);  Blackstone  Manufacturing  Co. 
v.  Blackstone,  200  Mass.  82   (1908). 

19  Sears  v.  Nahant,  215  Mass.  329  (1913). 

20  Dunnell  Manufacturing  Co.  v.  Pawtucket,  7  Gray  277  (1856) ;  Hardy  v. 
Yarmouth,  6  Allen  277  (1863) ;  Charlestown  v.  Middlesex  County  Commissioners, 
109  Mass.  270  (1872);  Milford  Water  Co.  v.  Hopkinton,  192  Mass.  491  (1906); 
Powers  v.  Worcester,  210  Mass.  471  (1912).  See  also  Troy  Cotton  and  Woolen 
Manufactory  v.  Fall  River,  167  Mass.  517  (1897),  holding  that  if  a  manufac- 
turing corporation  can  in  any  event  be  estopped  from  contending  that  the 
valuation  is  excessive,  it  can  only  be  when  it  has  made  representations  of  the 
value  of  its  property  to  the  assessors,  intending  that  they  should  act  thereon, 
and  they  have  been  actually  misled  thereby. 

21  Welch  v.  Boston,  211  Mass.  178  (1912);  Sears  v.  Nahant,  221  Mass.  437, 
442   (1915). 

22  In  Hopkins  v.  Reading,  170  Mass.  568  (1898)   it  was  held  that  absence 


Assessment  of  Local  Taxes  291 

G.L.c.  59,  §61] 

ment  that  a  list  be  brought  in,23  although  reliance  on  assurances 
by  the  assessors  that  a  formal  list  was  not  required  might  under 
some  circumstances  constitute  a  reasonable  excuse  for  delay.24 
But  the  mere  fact  that  the  assessors  knew  the  facts  concerning 
the  property  in  question  25  or  entered  into  a  discussion  with  the 
owner  concerning  its  liability  to  taxation 26  is  not  a  reasonable 
excuse  for  not  bringing  in  the  list  within  the  required  period. 
It  must  be  remembered  that  an  excuse  for  delay,  however  good, 
is  no  justification  for  not  filing  a  list  at  all,27  and  that  even  if  there 
is  a  reasonable  excuse  for  delay,  if  the  list  is  not  brought  in  as 
soon  as  the  cause  of  delay  ceases  to  operate,  the  right  to  abate- 
ment is  lost.28  The  meaning  of  the  statute  is  that  if  a  person 
liable  to  taxation  does  not  furnish  the  assessors  with  the  list, 
he  shall  be  liable  to  be  assessed  for  such  property  as  in  the 
judgment  of  the  assessors  he  owns  or  possesses;  not  merely  that 
the  assessors'  valuation  shall  be  conclusive  on  the  property  he 
really  owns.29  Even  if  a  list  is  duly  filed  the  assessors  are  not 
bound  by  the  valuation  contained  therein.  It  was  so  held  in 
1846  when  the  statute  left  it  in  doubt;30  and  in  the  next  re- 
vision of  the  statutes  all  possible  doubt  was  removed.31  It  is 
of  course  open  to  a  person  taxed  who  has  filed  a  list  to  contest 
the  assessors'  valuation  of  his  property.  If  the  list  is  duly  filed 
and  no  questions  are  asked  the  person  bringing  it  in,  the  assess- 
ors cannot  add  items  of  taxable  property  to  those  contained  in 


from  the  state  was  a  reasonable  excuse  for  delay.  When  an  executor  is  not 
appointed  in  season  to  bring  in  his  list  within  the  time  prescribed,  there  is 
sufficient  excuse  for  delay  as  a  matter  of  law.  Collector  of  West  Bridgewater  v. 
Dunster,  231  Mass.  291  (1918).  So  also  in  Parsons  v.  Lenox,  228  Mass.  231 
(1917),  insufficient  knowledge  by  an  executor  of  the  affairs  of  his  testator  was  held 
a  reasonable  excuse.  In  Sears  v.  Nahant,  221  Mass.  437  (1915)  however  it  was 
held  that  the  advice  of  counsel  that  a  party  was  not  taxable  was  not  a  reason- 
able excuse,  if  the  contention  of  the  assessors  to  the  contrary  was  clearly  ex- 
plained to  the  party  and  was   in  accordance   with  the  law. 

23  Boston  Rubber  Shoe  Co.  v.  Maiden,  216  Mass.  508  (1914);  Parsons  v. 
Lenox,  228  Mass.  231  (1917). 

24  Lowell  v.  Middlesex  County  Commissioners,  3  Allen  546  (1862);  Charles- 
town  v.  Middlesex  County  Commissioners,  101   Mass.  87  (1869). 

25  Boston  Rubber  Shoe  Co.  v.  Maiden,  216   Mass.  508   (1914). 

26  Atlantic  Maritime  Co.  v.  Gloucester,  214  Mass.  348  (1913). 

27  Charlestown  v.  Middlesex  County  Commissioners,  101  Mass.  87  (1869). 

28  Parsons  v.  Lenox,  228   Mass.  231    (1917). 

29  Harwood  v.  North  Brookfield,  130  Mass.  561   (1881). 

30  Newburyport  v.  Essex  County  Commissioners,  12  Met.  211  (1846). 
»  G.  S.  c.  11,  §  25. 


292  Taxation   in    Massachusetts 

[G.  L.c.  59,  §61 
the  list.32  If  the  person  bringing  in  the  list  refuses  to  answer 
on  oath  questions  relating  to  his  property,  or  his  answers  dis- 
close additional  taxable  property,  the  assessors  are  not  bound 
by  the  list;33  but  a  person  who  has  filed  a  list  is  not  precluded 
from  an  abatement  by  refusal  to  answer  the  questions  if  he  is 
on  the  facts  entitled  to  one.34 

If  a  person  is  assessed  who  is  not  liable  to  taxation  and  has 
filed  no  list  he  has  other  remedies  than  a  petition  for  abate- 
ment;35 but  if  he  chooses  to  avail  himself  of  the  latter  proceed- 
ing he  must  file  a  list.  Inasmuch  however  as  he  would  not 
be  in  the  class  described  in  the  assessors'  notice  to  bring  in  lists 
within  a  specified  period,  any  time  before  filing  his  petition 
for  abatement  would  be  seasonable  for  bringing  in  the  list. 

In  recent  years  the  statute  has  been  amended  so  that  inno- 
cent persons  should  not  suffer  from  the  default  of  others  in 
respect  to  filing  lists.  The  exemption  of  a  tenant  of  real  estate 
under  obligation  to  pay  more  than  a  moiety  of  the  taxes  thereon 
was  introduced  in  1888.  It  has  been  held  that  it  does  not  apply 
to  a  tenant  who  is  also  part  owner  of  the  land,  for  the  neglect 
to  file  a  list  is  his  own.36  A  corporation  which  is  notified  by  the 
commissioner  of  corporations  and  taxation  that  he  has  valued 
its  real  estate  less  than  the  local  assessors  may  apply  to  the 
assessors  for  an  abatement  and  appeal  if  necessary,  though  it 
has  filed  no  list.37 

While  corporations  are  bound  to  furnish  lists,  the  difference 
in  the  law  relating  to  taxation  of  corporations  results  in  a 
difference  in  the  contents  of  the  lists.  In  case  of  a  national 
bank  a  list  showing  the  name  of  each  shareholder  with  his  resi- 
dence and  number  of  shares  is  sufficient  to  entitle  it  to  maintain 
a  petition  for  abatement.38  It  has  been  held  that  when  a  cor- 
poration is  required  by  its  charter  to  apportion  its  funds  for 
the  purpose  of  taxation  among  eight  towns  and  to  notify  the 

32  Moors  v.  Street  Commissioners  of  Boston,  134  Mass.  431  (1883);  Chase  v. 
Boston,  193  Mass.  522  (1907) ;  National  Fireproofing  Co.  v.  Revere,  217  Mass. 
63  (1914). 

33  Hall  v.  Middlesex  County  Commissioners,  10  Allen  100  (1865) ;  Wright  v. 
Lowell,  166  Mass.  298  (1896). 

34  Wright  v.  Lowell,  166  Mass.  298  (1896). 

35  Infra  pages  400  to  412  inc. 

36  Ashley  v.  Bristol  County  Commissioners,  166  Mass.  216  (1896). 

.  37  Lowell  v.  Middlesex  County  Commissioners,  146  Mass.  403,  410  (1888); 
Essex  Co.  v.  Lawrence,  214  Mass.  79,  87  (1913). 

38  National  Bank  of   Commerce   v.   New  Bedford,   155   Mass.  312    (1892). 


Assessment  of  Local  Taxes  293 

G.  L.  c.  59,  §§  62-64  inc.] 

assessors  of  the  respective  towns  of  the  apportionment,  it  is 
not  obliged  to  also  file  lists.39 

A  tax  on  a  person  who  has  filed  a  list  is  not  invalid  because 
other  persons  taxable  in  the  city  or  town  did  not  file  lists  of 
their  property.40 

Payment  of  Costs  by  Petitioner 

Section  62.  A  person  applying  for  an  abatement  shall  pay  the 
legal  costs  accruing  before  it  is  made. 

Even  if  the  petition  for  abatement  is  granted,  the  petitioner 
is  not  entitled  to  receive  back  the  costs  paid  in  accordance  with 
the  provisions  of  this  section. 

Notice  of  Decision 

Section  63.  Assessors  shall,  within  ten  days  after  their  decision 
on  an  application  for  an  abatement,  give  written  notice  thereof  to 
the  applicant. 

Although  this  section  first  appeared  in  the  statute  author- 
izing appeals  to  the  superior  court,  it  is  applicable  to  the  action 
of  the  assessors  whatever  course  the  petitioner  may  subsequently 
take.  Proceedings  before  the  assessors  are  informal  and  the  re- 
quirement of  a  written  notice  of  their  decision  by  implication 
authorizes  other  steps  before  them  to  be  oral.1 

Appeal  to  County  Commissioners 

Section  64.  A  person  aggrieved  by  the  refusal  of  assessors  to 
abate  a  tax  may,  within  thirty  days  after  receiving  the  notice  pro- 
vided in  the  preceding  section,  appeal  therefrom  by  filing  a  complaint 
with  the  clerk  of  the  county  commissioners,  or  of  the  board  authorized 
to  hear  and  determine  such  complaints,  for  the  county  where  the 
property  taxed  lies,  and  if  on  hearing  the  board  finds  that  the  prop- 
erty has  been  overrated,  it  shall  make  a  reasonable  abatement  and 
an  order  as  to  costs.  If  the  list  required  to  be  brought  in  to  the 
assessors  was  not  brought  in  within  the  time  specified  in  the  notice 
required  by  section  twenty-nine,  the  tax  shall  not  be  abated  unless 


39  Greenfield  v.  Franklin  Countv  Commissioners,  135  Mass.  566  (1883). 
*°  White  v.  New  Bedford,  160  Mass.  217  (1893). 
1  Page  v.  Melrose,  186  Mass.  361   (1904). 


294  Taxation   in   Massachusetts 

[G.  L.  c.  59,  §  64 
the  appellate  board  finds  good  cause  for  the  delay  or  unless  the 
assessors  have  so  found  as  provided  in  section  sixty-one.  No  costs 
shall  be  allowed  to  a  complainant  who  has  failed  to  file  a  list  as 
required  by  law. 

Soon  after  the  first  settlement  of  the  colony  it  was  provided 
that  a  person  whose  tax  the  assessors  refused  to  abate  might 
appeal  to  the  county  court,1  and  with  the  change  from  the  court 
of  sessions  to  the  county  commissioners  the  right  of  appeal  has 
been  maintained  to  the  present  time. 

The  proceedings  before  the  county  commissioners  partake 
only  partially  of  the  nature  of  an  appeal.  If  the  assessors  had 
no  jurisdiction  to  abate  the  tax,2  or  no  option  to  refuse  to  abate 
it,3  the  proceedings  before  the  county  commissioners  must  ter- 
minate as  they  should  have  terminated  before  the  assessors; 
but,  if  the  abatement  depends  on  a  disputed  valuation,  the 
county  commissioners  consider  the  whole  matter  afresh.4 

If  a  list  is  duly  filed  and  no  questions  are  asked  the  person 
bringing  it  in,  the  assessors  cannot  lawfully  assess  him  on  prop- 
erty not  included  in  the  list;5  and  the  only  controversy  that  can 
arise  in  such  a  case  must  relate  to  the  valuation  of  the  property 
so  included.  The  county  commissioners  should  estimate  the  fair 
cash  value  of  the  property,  irrespective  of  the  value  placed  by 
the  assessors  upon  similar  property  in  the  same  city  or  upon 
the  same  property  in  previous  years.6  If  the  petitioner  shows 
that  one  item  of  his  property  is  over-assessed  the  city  or  town 
cannot  offer  evidence  that  other  items  were  under-assessed;  for 
the  county  commissioners  have  no  authority  to  increase  the  taxes 
upon  any  piece  of  property.7  In  general  in  proceedings  for 
the  abatement  of  a  tax  the  same  rules  of  evidence  are  enforced 

i  Anc.   Chart,  pp.  69,  70   (1641). 

2  Otis  Co.  v.  Ware,  8  Gray  509  (1857). 

3  Chase  v.  Boston,  193  Mass.  522  (1907). 

4  National   Bank   of   Commerce   v.   New  Bedford,    155   Mass.   312    (1892). 

5  Chase  v.  Boston,  193  Mass.  522  (1907);  National  Fireproofing  Co.  v. 
Revere,  217  Mass.  63   (1914). 

6  Lowell  v.  Middlesex  County  Commissioners,  152  Mass.  372  (1890).  See 
also  Chicopee  v.  Hampden  County  Commissioners,  16  Gray  38  (1860).  As  to 
what  constitutes  fair  cash  value  for  purposes  of  taxation,  see  supra  page  267. 

7  Lowell  v.  Middlesex  County  Commissioners,  3  Allen  546  (1862);  Mass- 
achusetts General  Hospital  v.  Belmont,  238  Mass.  396  (1921).  The  tax  on 
a  parcel  of  land  and  the  buildings  thereon  being  however  a  unit  (supra  page  191) 
an  excess  in  the  valuation  of  one  may  be  balanced  by  a  deficiency  in  the  other, 
Massachusetts  General  Hospital  v.  Belmont,  238    Mass.  396     (1921). 


Assessment  of  Local  Taxes  295 

G.  L.  c.  59,  §  64] 

as  are  employed  in  any  other  proceedings  in  which  the  valuation 
of  property  is  in  issue.8 

In  the  case  of  a  tax  upon  the  real  estate  and  machinery  of 
a  domestic  corporation,  the  valuation  put  upon  it  by  the  tax 
commissioner  in  fixing  the  franchise  tax  is  not  conclusive  upon 
the  corporation.  The  franchise  tax  and  the  local  tax  are  not 
necessarily  complementary.  The  right  to  have  an  excessive  tax 
abated  is  a  general  one  and  is  not  taken  away  by  the  fact  that 
a  public  officer  having  a  different  end  in  view  has  adopted  the 
valuation  sought  to  be  revised.9 

A  person  assessed  is  not  required  to  pay  his  tax  as  a  condition 
precedent  to  an  appeal  to  the  county  commissioners.10  If  a  tax- 
payer is  found  to  be  overrated  and  an  abatement  is  made,  either 
by  the  assessors  or  by  the  county  commissioners,  the  abatement 
is  not  in  itself  a  judgment  for  money  and  it  is  not  returned  to  a 
court  and  cannot  be  entered  in  any  court,  either  by  the  taxpayer 
or  by  the  authority-  which  makes  the  abatement.  If  the  tax 
has  not  been  paid  it  gives  no  right  to  ask  for  the  payment  of 
money,  but  merely  the  right  to  discharge  the  tax  by  the  pay- 
ment of  less  than  the  amount  assessed.  If  the  tax  has  been  paid, 
the  taxpayer  has  the  right  to  be  reimbursed  out  of  the  treasury 
of  the  city  or  town  to  the  amount  of  the  abatement,  and  he  is 
also  entitled  to  a  certificate  of  the  abatement.  But  this  certifi- 
cate cannot  be  entered  in  court  and  no  court  can  make  up  a 
judgment  upon  the  certificate  alone.  If  the  city  or  town  should 
refuse  to  reimburse  him  he  might  maintain  an  action  at  law 
against  it  based  upon  the  breach  of  the  statutory  obligation  to 
reimburse,  and  obtain  judgment  upon  establishing  in  court  all 
the  facts  essential  to  his  right  of  recovery  of  which  the  making 

8  Thus  in  Haven  v.  Essex  County  Commissioners,  155  Mass.  467  (1892),  it 
was  held  that  on  a  petition  for  abatement  of  a  tax  on  real  estate  evidence  of  sales 
of  neighboring  land  similarly  situated  is  admissible,  but  not  the  mere  opinion  of 
assessors  or  appraisers.  Evidence  as  to  the  value  of  land  in  a  remote  part  of 
the  state  resembling  land  in  question  only  as  being  on  seashore  is  inadmissible, 
even  in  the  guise  of  cross-examination  or  of  giving  reasons  for  witness's  opinion. 
In  National  Bank  of  Commerce  v.  New  Bedford,  175  Mass.  257  (1900)  it  was 
held  that  IB  determining  the  value  of  shares  of  stock,  newspapers  purporting 
to  contain  stock  quotations  are  inadmissible.  The  fact  that  an  expert  may  use 
hearsay  as  a  ground  of  opinion  does  not  make  the  hearsay  admissible.  In 
Massachusetts  General  Hospital  v.  Belmont,  233  Mass.  190  (1919)  it  was  held 
that  returns  by  a  corporation  showing  a  valuation  upon  its  real  estate  are 
admissible  against  it. 

8  Tremont  &  Suffolk  Mills  v.  Lowell,  178  Mass.  469   (1901). 

10  Milford  v.  Worcester  County  Commissioners,  213  Mass.  162  (1912). 


296  Taxation   in   Massachusetts 

[G.  L.c.  59,  §64 

of  the  abatement  is  one.11  In  this  respect  there  is  a  difference 
between  abatements  by  the  assessors  or  the  county  commissioners 
and  abatements  by  the  superior  court,12  for  in  the  latter  case 
prepayment  is  always  required,  and  the  abatement  itself  oper- 
ates as  a  judgment. 

To  entitle  a  taxpayer  to  prosecute  an  appeal  from  the  re- 
fusal of  the  assessors  to  abate  his  tax,  he  must  have  brought  in 
his  list  within  the  time  prescribed  by  the  assessors  or  be  able 
to  show  good  cause  for  his  delay.13  There  is  a  marked  distinction, 
which  is  often  overlooked,  between  the  rights  of  a  taxpayer  who 
has  failed  without  reasonable  excuse  to  bring  in  his  list  within 
the  prescribed  period,  on  petition  to  the  assessors,  and  his  rights 
under  like  conditions  on  appeal.  If  the  assessors  are  satisfied 
that  the  taxpayer  was  overassessed  they  are  bound  to  make  an 
abatement,  even  if  without  reasonable  excuse  he  failed  to  sea- 
sonably bring  in  his  list,  and  to  reduce  his  assessment  to  the  true 
value  of  his  taxable  property,  plus  fifty  per  cent  as  a  penalty 
for  his  delay  in  bringing  in  his  list.  But  if  for  any  reason  the 
applicant  fails  to  convince  the  assessors  that  he  has  been  over- 
assessed,  no  matter  how  arbitrary  or  unreasonable  their  attitude 
may  be  or  how  grossly  the  assessment  exceeds  the  fair  value 
of  his  taxable  property,  if  he  can  show  no  good  cause  for  his 
failure  to  bring  in  his  list  within  the  designated  period,  he  is 
wholly  precluded  from  prosecuting  an  appeal.14 

Decisions  of  the  county  commissioners  on  questions  of 
fact  are  final,15  but  decisions  on  questions  of  law  are  subject  to 
review.  The  proper  remedy  of  the  party  aggrieved  is  to  apply 
to  the  supreme  judicial  court  for  a  writ  of  certiorari,  which  is 
the  established  method  for  correcting  errors  in  law  of  a  body 
acting  judicially  but  whose  procedure  is  not  in  accordance  with 
the  course  of  the  common  law  and  which  is  highly  appropriate 
to  review  the  proceedings  of  county  commissioners  upon  the 
abatement  of  taxes.16 

11  Boott  Cotton  Mills  v.  Lowell,  159  Mass.  383   (1893). 

12  See  G.  L.  c.  59,  §  65,  infra  page  297. 

13  Porter  v.  Norfolk  County  Commissioners,  5  Gray  365  (1855) ;  Charles- 
town  v.  Middlesex  County  Commissioners,  101  Mass.  87,  92  (1869) ;  Sears  v. 
Nahant,  205  Mass.  558  (1910).  As  to  what  constitutes  "good  cause"  for  delay, 
see  the  decisions  on  "reasonable  excuse,"  G.  L.  c.  59,  §  61,  supra  page  287. 

14  Sears  v.  Nahant,  205  Mass.  558  (1910). 

15  Lowell  v.   Middlesex   County   Commissioners,  3  Allen   546,   549    (1862). 

16  Newburyport  v.  Essex  County  Commissioners,  12  Met.  211  (1846). 
Lincoln  v.  Worcester,  8  Cush.  55,  61  (1851).    A  writ  of  mandamus  will  not  lie 


Assessment  of  Local  Taxes  297 

G.  L.  c.  59,  §  65] 

Certiorari  is  a  discretionary  writ  and  the  proceedings  will 
not  be  quashed  by  a  certiorari  for  a  technical  irregularity  not 
doing  manifest  injustice.  The  writ  will  not  be  granted  because 
improper  evidence  was  admitted  by  the  county  commissioners 
unless  they  have  used  it  as  a  test.17  Either  the  person  assessed 
or  the  city  or  town,  if  aggrieved  by  an  improper  ruling  of  law, 
may  apply  for  certiorari. 

The  certiorari  is  heard  by  a  single  justice.  It  is  a  proceeding 
at  law  and  not  in  equity.  To  take  the  case  to  the  full  bench 
an  appeal  does  not  lie,  but  unless  the  presiding  justice  reports 
the  case  the  remedy  of  a  dissatisfied  party  is  to  file  a  bill  of 
exceptions.18 

Appeal  to  the  Superior  Court 

Section  65.  A  person  aggrieved  as  aforesaid  may,  instead  of 
pursuing  the  remedy  provided  in  the  preceding  section,  but  subject 
to  the  same  conditions,  appeal  to  the  superior  court  for  the  county 
where  the  property  taxed  lies  by  entering  a  complaint  in  said  court 
within  thirty  days  from  the  giving  of  the  notice  required  by  section 
sixty-three,  which  shall  be  heard  and  determined  as  other  court 
cases  by  the  court  sitting  without  a  jury. 

In  1890  a  person  aggrieved  by  the  refusal  of  the  assessors 
to  abate  a  tax  upon  him  was  given  the  additional  remedy  of  an 
appeal  to  the  superior  court  and  this  proceeding  has  in  prac- 
tice almost  superseded  the  concurrent  right  of  appeal  to  the 
county  commissioners.  The  rights  of  the  parties  are  the  same, 
whichever  method  of  appeal  is  employed,1  though  the  proce- 
dure is  different. 

The  statute  as  originally  enacted  provided  that  the  appeal 
should  be  entered  in  the  superior  court  on  the  first  return  day 
after  the  expiration  of  thirty  days  from  the  notice  of  the  assess- 
ors' decision,  but  this  unnecessary  limitation  of  the  exercise  of 
the  right  to  a  single  day  was  done  away  with  in  connection 


to  compel  county  commissioners  to  revise  their  decision.     Gibbs  v.  Hampden 
County  Commissioners,  19  Pick.  298  (1837). 

17  Lowell  v.  Middlesex  County  Commissioners,  152  Mass.  372  (1890). 

18  Brockton  v.  Plymouth  County  Commissioners,  183  Mass.  42  (1903). 

1  Sears  v.  Nahant,  205  Mass.  558  (1910).  Decisions  as  to  "good  cause  for 
delay"  are  applicable  to  either  form  of  appeal.  Conversely  a  corporation  which 
is  authorized  to  appeal  to  the  county  commissioners  under  G.  L.  c.  63,  §  57, 
although  it  has  filed  no  list,  may  appeal  to  the  superior  court,  as  a  "person 
aggrieved  as  aforesaid."      Essex  Co.  v.  Lawrence,  214  Mass.  79,  87  (1913). 


298  Taxation  in   Massachusetts 

[G.  L.  c.  59,  §  66 

with  the  preparation  of  the  General  Laws,  and  entry  may  be 

now  made  on  any  day  within  thirty  days  from  the  receipt  of 

the  assessors'  notice.2 

The  proceeding  is  an  appeal,  and  no  service  of  process  upon 
the  assessors  or  upon  the  inhabitants  of  the  town  is  required  or 
necessary.3  The  town,  and  not  the  assessors,  should  be  named  as 
the  party  respondent.4  No  answer  by  the  respondent  is  nec- 
essary.5 The  finding  of  the  court,  in  the  absence  of  questions 
of  law,  is  conclusive.6 

The  remedies  given  by  statute  to  a  person  assessed  whose 
tax  the  assessors  refuse  to  abate  are  exclusive,  and  a  writ  of 
mandamus  to  compel  the  assessors  to  abate  a  tax  or  a  writ  of 
certiorari  to  quash  the  refusal  of  a  board  of  assessors  to  abate 
a  tax,  based  on  alleged  errors  of  law  in  the  assessors'  proceedings, 
will  not  lie.7 

Provision  for  Speedy  Trial 

Section  66.  The  complaint  shall  be  heard  at  the  first  sitting 
of  the  court  in  such  county  for  the  trial  of  civil  causes  after  its  entry, 
unless,  at  the  request  of  the  respondent,  further  time  is  allowed  by 
the  court.  The  superior  court  or  the  supreme  judicial  court,  if  the 
case  is  carried  thereto,  shall  at  the  request  of  the  town  advance  the 
case  so  that  it  may  be  heard  and  determined  with  as  little  delay  as 
possible. 

The  provision  for  early  trial  is  for  the  benefit  of  the  city 
or  town,  can  be  waived  by  the  city  or  town  and  does  not  go  to 
the  jurisdiction  of  the  court,  so  as  to  preclude  a  trial  at  a  later 
sitting.1 

2  St.  1918,  c.  257,  §  39,  and  see  Preliminary  Report  of  Commissioners  to 
Consolidate  the  General  Laws,  p.  106. 

3  Cheney  v.  Dover,  205  Mass.  501  (1910) ;  Thayer  Academy  v.  Assessors 
of  Braintree,  232  Mass.  402  (1919). 

4  Cheney  v.  Dover,  205  Mass.  501  (1910).  Prior  to  these  decisions,  the 
assessors  were  frequently  made  parties  respondent.  If  a  complaint  is  brought 
against  the  assessors,  it  may  be  amended  by  substituting  the  town  as  the 
appellee.    Thayer  Academy  v.  Assessors  of  Braintree,  232  Mass.  402  (1919). 

5  In  National  Bank  of  Commerce  v.  New  Bedford,  175  Mass.  257  (1900), 
Holmes,  C.  J.,  speaks  of  the  "tardily  filed  answer"  and  says  that  "the  reason 
for  the  delay  seems  to  have  been  that  the  respondent  had  not  filed  an  answer;" 
but  it  would  seem  to  follow  from  the  reasoning  in  Cheney  v.  Dover,  205  Mass. 
501  (1910),  that  an  answer  was  not  necessary.  Cases  have  been  heard  without 
an  answer;  for  example,  Sears  v.  Nahant,  205  Mass.  588  (1910). 

6  Hollis  v.  Lynn,  237   Mass.  135   (1921). 

7  Sears  v.  Assessors  of  Nahant,  208  Mass.  208  (1911). 

1  National  Bank  of  Commerce  v.  New  Bedford,  175  Mass.  257  (1900). 


Assessment  of  Local  Taxes  299 

G.L.c.  59,  §§67,68] 

Reference  to  Commissioner 

Section  67.  The  court  may  appoint  a  commissioner  to  hear 
the  parties  and  report  the  facts,  with  or  without  the  evidence.  Such 
report  shall  be  prima  facie  evidence  of  the  facts  therein  found.  The 
court  shall  allow  such  commissioner  reasonable  compensation  to 
be  paid  by  the  county. 

When  a  case  has  been  referred  to  a  commissioner,  heard  in 
the  superior  court  upon  his  report,  and  taken  on  exceptions  to 
the  supreme  judicial  court,  the  judgment  of  the  commissioner 
in  matters  of  fact  is  not  open  to  revision.  The  only  questions  open 
are  the  questions  of  law  whether  upon  the  evidence  reported 
the  commissioner's  findings  were  warranted  and  whether  upon 
the  findings  so  far  as  warranted  the  petitioner  was  entitled  to  an 
abatement;1  and  when  the  commissioner's  report  is  the  only 
evidence  the  question  is  solely  whether  the  report  warranted  the 
finding  of  the  superior  court.2 

Judgment  and  Costs 

Section  68.  If,  on  hearing,  the  court  finds  that  the  complain- 
ant has  complied  with  all  the  provisions  of  law  and  has  paid  the 
tax  for  which  he  has  been  assessed,  it  may  grant  him  a  reasonable 
abatement,  and  shall  render  judgment  against  the  town  for  the 
amount  thereof,  and  for  all  charges  and  interest  on  the  amount  of 
the  abatement  from  the  date  of  the  payment  of  the  tax.  The  court 
may  also,  if  the  complainant  has  filed  a  list  of  his  estate  as  required 
by  section  twenty-nine,  allow  him  costs  in  its  discretion.  If  no 
abatement  is  granted,  judgment  shall  be  rendered  for  the  town  for 
its  expenses  and  costs,  to  be  taxed  by  the  court. 

Payment  of  the  tax  not  only  does  not  preclude  the  taxpayer 
from  invoking  the  jurisdiction  of  the  court,  but  is  made  by 
this  statute  an  express  condition  of  the  granting  of  an  abate- 
ment.1 It  is  not  however  generally  considered  that  the  tax 
must  be  paid  before  the  complaint  is  filed;  it  is  sufficient  if  it 
is  paid  before  the  case  is  heard.  The  provisions  of  law,  compli- 
ance with  which  is  also  made  a  condition  precedent,  are  doubt- 

1  Page  v.  Melrose,  186  Mass.  361   (1904). 

2  Hollis  v.  Lynn,  237  Mass.  135   (1921). 

1  National  Bank  of  Commerce  v.  New  Bedford,  155  Mass.  312  (1892), 


300  Taxation   in   Massachusetts 

[G.L.c.  59,  §69 

less  only  those  contained  in  the  sections  relating  to  proceedings 
for  abatement.  It  is  customary,  ex  majore  cautela,  to  pay  the 
tax  under  protest,  but  a  protest  is  not  necessary.2  The  statute 
which  requires  payment  under  protest  as  a  condition  precedent 
to  the  recovery  back  of  a  tax  applies  only  to  actions  at  common 
law.3 

In  the  requirement  of  prepayment  it  would  seem  that  there 
is  a  difference  between  proceedings  before  the  county  commis- 
sioners and  those  before  the  superior  court.  An  abatement  by 
the  former,  if  the  tax  has  not  been  paid,  gives  the  person  assessed 
the  right  to  discharge  the  tax  by  payment  of  less  than  the  amount 
assessed,4  and  if  the  tax  has  been  paid  special  statutory  provision 
is  made  for  paying  it  back;5  whereas  no  other  effect  is  provided 
for  an  abatement  by  the  latter  than  the  usual  outcome  of  a 
successfully  prosecuted  action  at  law — a  judgment  for  a  speci- 
fied sum. 

The  original  statute  of  1890  made  no  provision  for  the  re- 
payment of  interest  on  the  sum  abated,  but  in  1895  the  require- 
ment of  interest  was  inserted.6  When  an  abatement  is  refused 
the  town  may  recover  its  expenses  and  costs  of  the  applicant, 
but  the  town  cannot  recover  the  sums  which  it  has  paid  to  its 
counsel  for  defending  the  case  as  part  of  such  expenses.7 

Reimbursement,  Interest  and  Costs 

Section  69.  A  person  whose  tax  has  been  abated  shall,  if  the 
tax  has  been  paid,  be  reimbursed  by  the  town  to  the  amount  of  the 
abatement  allowed,  with  interest  from  the  time  of  payment  of  said 
tax  and  all  charges  paid  therewith  except  legal  costs  paid  as  pro- 
vided in  section  sixty-two. 

This  section  has  no  application  to  proceedings  before  the 
superior  court.  It  was  enacted  in  substantially  its  present  form 
many  years  before  appeals  to  the  superior  court  were  authorized, 

2  Thayer  Academy  v.  Assessors  of  Braintree,  232  Mass.  402    (1919). 

3  G.  L.  c.  60,  §  98,  infra  page  406.  So  also  the  other  requirement  of  that 
statute,  that  no  suit  shall  be  brought  to  recover  back  a  tax  unless  brought  within 
three  months  after  payment  of  the  tax  has  no  application  to  proceedings  for 
abatement.     Thayer  Academy  v.  Assessors  of  Braintree,  232  Mass.  402   (1919). 

4  Boott  Cotton  Mills  v.  Lowell,  159  Mass.  383  (1893). 

5  G.  L.  c.  59,  §  69,  infra  page  300. 

6  See  Tremont  &  Suffolk  Mills  v.  Lowell,  165  Mass.  265  (1896). 

7  Sears  v.  Nahant,  215  Mass.  324  (1913). 


Assessment  of  Local  Taxes  301 

G.L.c.  59,  §70] 

and  there  are  special  provisions  in  the  statute  relating  to  appeals 
to  the  superior  court  applicable  to  the  same  subjects.1 

The  county  commissioners  have  no  authority  to  allow  a  tax- 
payer who  has  prevailed  before  them  in  his  petition  for  abate- 
ment the  costs  of  prosecuting  the  petition.  The  provision  as 
to  charges  is  intended  only  to  enable  a  party  to  receive  back 
any  of  the  legal  charges  and  fees  which  he  may  have  been 
obliged  to  pay  the  collector  by  reason  of  the  enforcement  of 
payment  of  the  tax  after  the  application  for  an  abatement  had 
been  made  and  does  not  authorize  the  recovery  of  a  compensa- 
tion in  the  form  of  costs  for  time  and  trouble  in  prosecuting  the 
application  for  abatement.2 

It  was  held  in  the  absence  of  express  provision  that  a  person 
who  paid  his  tax  and  secured  an  abatement  was  not  entitled  to 
interest  upon  the  amount  abated  except  from  the  date  of  de- 
mand;3 but  in  1894  the  provision  that  interest  be  paid  from  the 
time  of  payment  was  inserted.  This  statute  did  not  apply  to 
proceedings  in  the  superior  court  and  there  was  no  provision 
for  interest  upon  abatements  made  there  until  the  following 
year.4 

There  is  some  doubt  whether  the  provision  as  to  interest 
applies  to  abatements  made  by  the  assessors  themselves.  Al- 
though the  statute  is  broad  enough  to  cover  abatements  by  the 
assessors,  it  is  the  practice  in  Boston  and  some  other  cities  not 
to  pay  interest  on  abated  taxes  unless  the  abatement  was  made 
by  a  higher  tribunal  than  the  assessors. 

Certificate  of  Abatement 

Section  70.  A  person  whose  tax  has  been  abated  shall  be  en- 
titled to  a  certificate  thereof  from  the  assessors,  clerk  of  the  commis- 
sioners or  other  proper  officer. 

This  statute  also  has  no  application  to  abatements  by  the 
superior  court.  The  certificate  provided  for  by  this  section 
cannot  be  entered  in  court  and  no  court  can  make  up  a  judgment 

1  Tremont  &  Suffolk  Mills  v.  Lowell,  165  Mass.  265  (1896). 

2  Lowell  v.  Middlesex  County  Commissioners,  3  Allen  546  (1862);  Charles- 
town  v.  Middlesex  County  Commissioners,  109  Mass.  270  (1872). 

"  Lowell  v.  Middlesex  County  Commissioners,  3  Allen  550  (1862);  Boott 
Cotton  Mills  v.  Lowell,  159  Mass.  383  (1893). 

4  See  as  to  this  statute  Tremont  &  Suffolk  Mills  v.  Lowell,  165  Mass. 
265  (1S96). 


302  Taxation   in    Massachusetts 

[G.L.c.  59,  §§71-73  inc. 

upon  it  alone.1  It  would  seem  however  that  it  might  be  offered 
in  evidence  whenever  it  was  material.  Its  primary  purpose  is 
however  to  satisfy  the  collector  that  the  tax  has  been  abated. 

Abatement  of  Uncollectible  Taxes 

Section  71.  If  a  collector  is  satisfied  that  a  poll  tax  or  tax 
upon  personal  property,  or  any  portion  of  said  tax,  committed  to 
him  or  to  any  of  his  predecessors  in  office  for  collection,  cannot  be 
collected  by  reason  of  the  death,  absence,  poverty,  insolvency,  bank- 
ruptcy or  other  inability  of  the  person  assessed  to  pay,  he  shall 
notify  the  assessors  thereof  in  writing,  on  oath,  stating  why  such 
tax  cannot  be  collected.  The  assessors  shall  act  on  such  notifi- 
cation within  thirty  days  after  its  receipt  and,  after  due  inquiry, 
may  abate  such  tax  or  any  part  thereof,  and  shall  certify  such 
abatement  in  writing  to  the  collector;  and  said  certificate  shall  dis- 
charge the  collector  from  further  obligation  to  collect  the  tax  so 
abated.  But  no  poll  tax  shall  be  abated  under  this  section  within 
the  calendar  year  in  which  assessed. 

Section  72.  Whenever  the  commissioner  deems  any  lands  to 
have  been  assessed  at  a  valuation  insufficient  to  meet  the  charges 
and  expenses  of  collecting  the  tax  thereon,  he  may  in  writing  author- 
ize the  assessors  to  abate  the  tax  of  their  own  motion  as  a  tax 
which  ought  not  to  have  been  assessed.  The  authorization  shall 
form  a  part  of  the  assessors'  records  of  abatements. 

Inasmuch  as  the  polls  and  any  portion  of  the  estates  of  per- 
sons who  by  reason  of  age,  infirmity  and  poverty  are  in  the 
judgment  of  the  assessors  unable  to  contribute  fully  toward  the 
public  charges  are  exempt  from  taxation,  the  assessors  under 
their  general  power  to  abate  taxes  which  were  improperly  assessed 
and  without  a  petition  from  the  person  assessed  or  notice  from 
the  collector  may  abate  the  tax  on  such  a  person  after  it  has  been 
committed  to  the  collector.1 

Abatement  of  Taxes  on  Telephone  and  Telegraph 

Companies 

Section  73.  Any  company  aggrieved  by  the  taxes  assessed  on 
it  relating  to  any  property  valued  in  accordance  with  section  thirty- 

1  Boott  Cotton  Mills  v.  Lowell,  159  Mass.  383  (1893). 
1  Gordon  v.  Sanderson,  165  Mass.  375  (1896). 


Assessment  of  Local  Taxes  303 

G.  L.  c.  59,  §  74] 

nine  may,  within  six  months  after  the  date  of  its  tax  bill,  apply- 
to  the  commissioner  for  an  abatement  thereof ;  and  if  the  commissioner 
finds  that  the  company  is  taxed  at  more  than  its  just  proportion,  or 
upon  an  assessment  of  any  of  its- said  property  in  excess  of  its  fair 
cash  value,  he  shall  make  a  reasonable  abatement.  No  company 
which  has  not  duly  filed  the  return  required  by  section  forty-one 
shall  have  an  abatement  unless  it  shall  furnish  to  the  commissioner 
a  reasonable  excuse  for  the  delay,  or  unless  such  tax  exceeds  by 
more  than  fifty  per  cent  the  amount  of  the  tax  which  would  have 
been  assessed  on  such  property  if  the  return  had  been  seasonably 
filed,  and  in  such  case  only  the  excess  over  such  fifty  per  cent  shall 
be  abated.  Whenever  any  application  for  abatement  hereunder  is 
made,  the  commissioner  shall  give  notice  thereof  to  the  assessors  of 
the  town  in  which  is  located  any  of  the  property  with  reference  to 
which  an  abatement  of  the  tax  is  asked  for,  and  such  assessors  may 
appear  before  the  commissioner  and  be  heard  by  him  with  relation 
to  the  subject  of  the  abatement.  The  commissioner  shall,  within  ten 
days  after  his  decision  on  an  application  for  abatement  hereunder, 
give  written  notice  thereof  to  the  applicant  and  to  the  assessors.  A 
company  aggrieved  by  the  refusal  of  the  commissioner  to  abate  a  tax 
hereunder  may  prosecute  an  appeal  from  his  decision  in  the  manner 
and  to  the  tribunals  provided  for  a  person  aggrieved  by  the  refusal 
of  assessors  to  abate  a  tax,  and  all  laws  relating  to  such  an  appeal 
from  a  refusal  of  assessors  to  abate  a  tax  shall  apply  in  proceedings 
hereunder. 

This  statute  makes  provision  for  the  abatement  of  taxes  on 
the  structures  of  telephone  and  telegraph  companies  which, 
though  taxed  locally,  are  valued  for  purposes  of  local  taxation  by 
the  commissioner  of  corporations  and  taxation. 

Notice  to  Commissioner  of  Abatement  of  Local  Taxes  on 

Corporations 

Section  74.  Whenever  an  abatement  is  finally  made  to  any 
corporation  taxable  under  chapter  sixty-three  upon  any  tax  assessed 
by  the  assessors  of  any  town,  upon  or  in  respect  of  works,  structures, 
real  estate,  machinery,  poles,  underground  conduits,  wires  and  pipes, 
the  assessors,  commissioners  or  court  granting  such  abatement  shall 
forthwith  notify  the  commissioner  thereof,  and  shall  state  in  such 
notice  what  sum  was  determined  by  such  assessors,  commissioners  or 


304  Taxation   in    Massachusetts 

[G.  L.  c.  59,  §  75 
court  to  have  been  the  full  and  fair  cash  value  of  such  works,  struc- 
tures, real  estate,  machinery,  poles,  underground  conduits,  wires  and 
pipes  on  the  first  day  of  April  on  which  the  tax  so  abated  was 
originally  assessed. 

Omitted  Assessments 

Section  75.  If  the  real  or  personal  estate  of  a  person,  to  an 
amount  not  less  than  one  hundred  dollars  and  liable  to  taxation,  has 
been  omitted  from  the  annual  assessment  of  taxes,  the  assessors  shall 
between  December  tenth  and  twentieth  following,  both  inclusive, 
assess  such  person  for  such  estate.  The  taxes  so  assessed  shall  be 
entered  on  the  tax  list  of  the  collector,  who  shall  collect  and  pay 
over  the  same.  Such  additional  assessment  shall  not  render  the  tax 
of  the  town  invalid  although  its  amount,  in  consequence  thereof, 
shall  exceed  the  amount  authorized  by  law  to  be  raised. 

This  statute  as  originally  enacted  in  1868  provided  in  sub- 
stance that  the  assessors  might  add  to  the  tax  list  after  it  had 
been  committed  to  the  collector  and  before  the  first  day  of  August 
real  or  personal  estate  to  an  amount  not  less  than  five  hundred 
dollars  which  they  should  "  discover "  to  have  been  omitted 
from  the  last  annual  assessment.  Previous  to  its  enactment, 
while  no  time  other  than  a  reasonable  one  was  fixed  for  com- 
mitting the  tax  list  and  warrant  to  the  collector  and  the  assessors' 
might  continue  to  add  property  to  the  list  up  to  the  moment 
of  its  commission,  after  the  warrant  had  left  their  hands  they 
had  no  authority  to  make  any  further  assessment,  even  with  the 
consent  of  the  person  assessed.1  The  various  amendments  to 
the  statute  have  related  principally  to  the  time  in  which  the 
additional  assessment  might  be  made;  in  1873  the  time  was 
extended  to  the  fifteenth  of  September  and  the  amount  reduced 
to  one  hundred  dollars;  in  1886  it  was  provided  that  the  assess- 
ment might  be  made  any  time  after  the  rate  had  been  fixed, 
whether  before  or  after  the  commission  of  the  warrant,  and 
before  the  sixteenth  of  December;  and  in  1888  the  time  for  the 
additional  assessment  was  limited  to  "  between  the  fifteenth 
and  twentieth  days  of  December."  In  1911  the  period  was 
extended  to  "  between  the  tenth  and  twentieth  days,  both  inclu- 
sive, of  December." 

1  Opinion  of  the  Justices,  18  Pick.  575  (1836). 


Assessment  of  Local  Taxes  305 

G.  L.  c.  59,  §  75] 

In  the  various  forms  in  which  the  statute  appeared  prior 
to  the  enactment  of  the  Revised  Laws  in  1902  the  assessors 
were  authorized  to  tax  only  such  property  as  they  should  "dis- 
cover "  to  have  been  omitted;  and  it  was  held  in  1884  that  the 
assessors  could  not  be  said  to  have  discovered  that  there  had 
been  an  omission  until  they  were  satisfied  of  the  fact  as  a  board, 
and  consequently  property  might  be  assessed  under  this 
statute,  although  one  of  the  assessors  knew  of  its  existence  be- 
fore the  list  and  warrant  were  committed  to  the  collector  if 
he  communicated  the  facts  to  his  associates  afterward.2  In  the 
Revised  Laws  and  subsequent  enactments  all  allusion  to  dis- 
covery has  been  discarded  and  the  statute  does  not  now  require 
property  to  be  newly  discovered  in  the  sense  of  coming  for  the 
first  time  to  the  knowledge  of  the  assessors  in  order  that  it  may 
be  legally  assessed  as  omitted  property.  If  the  assessors,  through 
want  of  knowledge  of  facts  or  ignorance  of  the  law  or  as  to  their 
duty  or  for  any  other  honest  reason  have  failed  to  include  prop- 
erty in  the  annual  assessment,  it  is  omitted  property  within  the 
meaning  of  the  statute.3 

The  tax  on  omitted  property  is  not  a  new  and  separate  tax 
but  is  a  part  of  the  annual  assessment,  made  as  of  the  first  day 
of  April.4  It  should  be  assessed  upon  a  person  deceased  if  he 
was  living  on  the  first  day  of  April;5  and  a  person  properly 
taxable  within  the  town  for  any  property  who  is  subjected  to 
an  additional  assessment  under  this  statute  upon  property  that 
he  does  not  own  or  that  is  not  taxable  has  no  remedy  but  an 
application  for  abatement.6 

There  is  no  requirement  that  property  subjected  to  an  assess- 
ment under  this  statute  be  itemized  or  specified.7  The  property 
included  in  the  additional  assessment  is  "  entered  on  the  tax 
list  of  the  collector  "  within  the  meaning  of  the  statute  although 
contained  in  a  separate  book  or  written  on  a  separate  piece  of 
paper.8  Whether  or  not  a  new  warrant  is  necessary,  it  is  within 
the  implied  powers  of  the  assessors  to  issue  one  if  they  see  fit.9 

2  Noyes  v.  Hale,  137  Mass.  266  (1884). 

3  Sears  v.  Nahant,  215  Mass.  329   (1913). 

4  Harwood  v.  North  Brookfield,  130  Mass.  561  (1881);  Noyes  v.  Hale,  137 
Mass.  266  (1884). 

5  Noyes  v.  Hale,  137  Mass.  266   (1884). 

6  Harwood  v.  North  Brookfield,  130  Mass.  561    (1881). 

7  Noyes  v  Hale,  137  Mass.  266   (1884). 

8  Noyes  v.  Hale,  137  Mass.  266,  273  (1884). 

•  Noyes  v.  Hale,   137  Mass.  266,  273   (1884). 


306  Taxation   in   Massachusetts 

[G.L.c.  59,  §§76,77 

Under  the  provisions  of  this  statute,  the  discovery  of  a  large 
amount  of  property  located  in  a  small  town,  after  the  tax  rate 
had  been  fixed,  would  subject  the  owner  to  the  payment  of  an 
onerous  tax  and  might  result  in  the  collection  of  more  money 
by  taxation  than  the  needs  of  the  town  would  require;  but  the 
legislature  having  imposed  no  limit  the  court  cannot  create  one.10 
The  danger  of  such  an  assessment  may  have  been  intended  as 
one  of  the  inducements  to  the  owners  of  taxable  property  to 
furnish  lists. 

Revision  of  Valuation 

Section  76.  If  the  commissioner  deems  any  property  subject 
to  taxation  not  properly  valued,  he  may  recommend  to  the  assessors 
a  revision  of  its  valuation,  and  they  may  make  an  assessment  upon 
the  additional  value  in  the  manner  and  within  the  time  provided  by 
the  preceding  section  and  subject  to  its  provisions'. 

This  statute1  originated  with  a  report  of  the  Commission 
on  Taxation  appointed  in  1907,2  was  omitted  in  the  codification 
of  the  tax  laws  in  1909  and  was  re-enacted  in  1910 3  at  the 
recommendation  of  the  tax  commissioner.  As  enacted  it  did 
not  contain  any  limitations  as  to  time ;  but  it  was  held  that  the 
limitations  of  the  preceding  section  were  applicable,  and  that 
a  revaluation  could  not  be  made  after  the  twentieth  of  Decem- 
ber in  any  year.4  In  the  codification  of  the  General  Laws  the 
wording  of  the  statute  was  modified  to  conform  to  this  decision. 

Reassessment  of  Taxes 

Section  77.  Every  tax  except  a  poll  tax,  which  is  invalid  by 
reason  of  error  or  irregularity  in  the  assessment  and  which  has  not  been 
paid,  or  which  has  been  recovered  back,  may  be  reassessed  by  the 
assessors  for  the  time  being,  to  the  just  amount  to  which,  and 
upon  the  estate  or  to  the  person  to  whom,  it  ought  at  first 
to    have    been    assessed,    whether    such    person    has    continued    an 

10  Noyes  v.  Hale,  137  Mass.  266,  272  (1884).  See  for  example,  Sears  v. 
Assessors  of  Nahant,  205  Mass.  558  (1910),  and  Cheney  v.  Assessors  of  Dover, 
205  Mass.  501  (1910).  In  the  latter  case  an  assessment  on  the  personal  estate 
of  one  person  was  more  than  twice  the  amount  of  the  entire  appropriation  of  the 
town  for  a  year.  Such  extreme  cases  are  of  course  not  so  likely  to  arise  since 
the  enactment  of  the  income  tax  law. 

1  St.  1908,  c.  550,  §  4. 

2  Under  c.  129  of  the  Resolves  of  1907. 

3  St.  1910,  c.  260,  §  1. 

4  Gannett  v.  Cambridge,  218  Mass.  60   (1914). 


Assessment  of  Local  Taxes  307 

G.  L  c.  59,  §  78] 

inhabitant  of  the  same  city  or  town  or  not.  An  alienation  of  the 
real  estate  assessed  shall  not  defeat  a  re-assessment,  if  made  within 
two  years  after  the  tax  first  assessed  was  committed  to  the  collector; 
but  the  lien  provided  by  section  thirty-seven  of  chapter  sixty  shall 
terminate  as  therein  provided. 

Section  78.  *  Taxes  reassessed  under  the  preceding  section  shall 
be  committed  to,  and  collected  and  paid  over  by,  the  collector  for 
the  time  being,  in  the  same  manner  as  other  taxes,  except  that  the 
name  of  the  person  to  whom  they  were  originally  assessed  shall  be 
stated  in  the  tax  list;  and  the  bond  of  such  collector  shall  apply  to 
such  reassessed  taxes. 

In  the  early  part  of  the  last  century,  in  the  absence  of  any 
statute  relating  to  re-assessment,  it  was  held  that  when  an 
entire  assessment  was  invalid  by  reason  of  an  error  or  irregu- 
larity in  the  assessment,  whether  the  tax  list  had  been  committed 
to  the  collector  or  not,  the  assessment  was  a  nullity  and  could 
be  treated  as  such  and  a  re-assessment  could  be  made  in  the 
proper  form;1  if  however  the  entire  assessment  was  not  invalid, 
but  was  objectionable  because  it  included  the  polls  and  estates 
of  various  persons  who  were  not  properly  taxable  in  the  place 
where  the  assessment  was  made,  a  re-assessment  could  not  law- 
fully be  made.2  One  who  could  pick  a  flaw  in  the  assessment 
so  far  as  it  related  to  him  or  in  the  proceedings  of  the  town  in 
making  the  appropriations  for  which  the  tax  was  levied  could 
wholly  escape  taxation  for  the  year.  In  consequence  of  deci- 
sions holding  an  entire  tax  invalid  because  of  an  irregularity 
which  affected  only  a  trivial  portion  of  the  amount  assessed, 
a  statute  was  enacted  in  1859  which  put  an  end  to  almost  all 
wrangling  over  technical  defects  in  the  assessment  of  taxes  by  pro- 
viding that  if  a  tax  was  partially  invalid  only  the  illegal  excess 
could  be  recovered  back  and  all  proceedings  for  the  collection  of 
the  tax  by  sale  or  levy  should  be  valid  ;3  that  an  action  to  recover 
back  a  tax  could  be  brought  only  within  three  months  after 
the  payment;4  and  that  a  tax  invalid  by  reason  of  an,  error 
or  irregularity  in  the  assessment  might  be  re-assessed  in  proper 

1  Pond  v.  Negus,  3  Mass.  230   (1807) ;   Libby  v.  Burnham,   15  Mass.  144, 
147  (1818). 

2  Inglee  v.  Bosworth,  5  Pick.  498  (1827). 

3  St,  1859,  c.  118,  §  4,  now  G.  L.  c.  59,  §  82,  infra  page  311;  G.  L.  c.  60, 
§  98,  injra  page  400. 

4  St.  1859,  c.  118,  §  3,  now  G.  L.  c.  60,  §  98,  infra  page  400. 


308  Taxation   in   Massachusetts 

[G.L.c.  59,  §78 
form.  The  latter  provision  is  the  statute  now  under  considera- 
tion. 

A  re-assessment  may  be  made  after  the  expiration  of  the  year 
in  which  the  original  assessment  was  levied,  by  an  entirely  new 
board  of  assessors,5  but  whenever  made  it  must  be  based  upon 
the  valuation  of  the  year  in  which  the  tax  was  first  assessed 
and  upon  the  votes  of  the  town  and  the  warrants  of  the  state 
and  county  requiring  it.6  A  re-assessment  may  be  used  to  cure 
any  description  of  error  in  regard  to  either  amount,  estate  or 
person,7  but  the  power  to  re-assess  gives  no  authority  to  vacate 
a  valid  tax,8  and  when  the  original  assessment  is  valid  a  re- 
assessment is  invalid.9  When  however  a  re-assessment  is  made 
by  the  assessors  at  the  request  of  persons  interested,  although 
the  original  assessment  is  valid,  such  persons  cannot  object  to 
the  re-assessment  on  the  ground  that  the  assessors  had  no  au- 
thority to  make  it.10 

A  re-assessment  may  be  made  when  the  interests  of  the 
persons  assessed  are  several  and  the  assessment  has  been  made 
to  them  jointly,  but  there  must  be  a  distinct  and  separate 
judgment  of  the  assessors  fixing  the  value  of  the  interest  of 
each  and  the  amount  of  tax  to  be  assessed  separately  to  each.11 
When  the  error  which  necessitates  a  re-assessment  is  such  as 
to  invalidate  the  entire  assessment  a  new  list  and  a  new  warrant 
are  indispensable;12  but  when  the  error  is  in  an  individual  assess- 
ment the  assessors  may  change  and  add  to  the  original  list 
after  it  has  been  committed  to  the  collector  without  issuing  a 
new  warrant.13 

It  was  provided  in  1881  that  taxes  on  real  estate  might  be 
re-assessed  any  time  within  two  years  from  the  time  the  tax 

s  Hubbard  v.  Garfield,  102  Mass.  72  (1869). 

6  Hubbard  v.  Garfield,  102  Mass.  72  (1869);  Davis  v.  Boston,  129  Mass. 
377  (1880).    See  also,  Market  National  Bank  v.  Belmont,  137  Mass.  407  (1884). 

*  Hubbard  v.  Garfield,  102  Mass.  72  (1869) ;  Hunt  v.  Perry,  165  Mass.  287 
(1896). 

8  Farnsworth  v.  Boston,  121  Mass.  173  (1876). 

9  Oakham  v.  Hall,  112  Mass.  535  (1873) ;  Deane  v.  Hathaway,  136  Mass.  129 
(1883). 

k>  Burr  v.  Wilcox,  13  Allen  269  (1866). 

11  Jennings  v.  Collins,  99  Mass.  29  (1868);  Hunt  v.  Perry,  165  Mass.  287 
(1896). 

12  Hubbard  v.  Garfield,  102  Mass.  72  (1869). 

13  Hubbard  v.  Garfield,  102  Mass.  72  (1869) ;  Hunt  v.  Perry,  165  Mass.  287 
(1896). 


Assessment  of  Local  Taxes  309 

G.L.c.  59,  §§  79-81  inc.] 

first  assessed  was  committed  to  the  collector,  notwithstanding 
an  alienation  of  the  land;  but  it  is  elsewhere  provided  that 
there  shall  be  no  lien  for  taxes  re-assessed  if  the  property  is 
alienated  before  the  re-assessment.14  Accordingly  when  real 
estate  wrongly  assessed  has  been  alienated 15  within  two  years, 
the  re-assessment  must  be  imposed  within  the  two  years,  and 
can  be  collected  only  by  distress  of  the  goods  of,  or  arrest  of, 
or  suit  against  the  person  who  owned  or  occupied  the  land  at 
the  date  of  the  original  assessment  and  who  was  assessed  in  the 
re-assessment.  In  1915  authority  was  granted  for  the  re-assess- 
ment of  taxes  in  case  a  tax  title  was  adjudicated  invalid  on  ac- 
count of  irregularity  in  the  proceedings  subsequent  to  the  assess- 
ment, the  re-assessment  to  be  to  the  owner  of  record  at  the  time 
of  adjudication.  This  statute  was  in  the  form  of  an  amendment 
to  the  statute  now  under  consideration.16  In  1918  this  amend- 
ment was  repealed  on  the  ground  that  it  was  probably  uncon- 
stitutional,17 and  as  a  substitute,  provision  made  for  the  pres- 
ervation of  the  lien  in  the  case  of  an  unsuccessful  attempt  to 
sell  for  taxes.18 

There  is  nothing  in  the  statutes  authorizing  re-assessment 
which  makes  a  re-assessment  obligatory  upon  the  assessors  when 
a  person  is  assessed  more  than  his  due  proportion,  so  that  such 
person  may  treat  the  tax  as  void  if  it  is  not  re-assessed.19  The 
re-assessment,  to  be  valid,  must  of  course  be  imposed  upon  the 
persons  who  should  properly  have  been  assessed  in  the  first  place, 
and  if  it  is  not  so  imposed  it  stands  in  no  better  position  than 
an  original  assessment.20 

Apportionment  of  Taxes  on  Real  Estate  Subsequently 

Divided 

Section  79.  If  real  estate  is  divided  by  sale,  mortgage,  upon  a 
petition  for  partition  or  otherwise  after  a  tax  has  been  assessed  thereon 

14  G.  L.  c.  60,  §  37,  infra  page  349. 

15  As  to  what  constitutes  alienation  within  the  meaning  of  these  statutes  see 
infra  page  351. 

™  St.  1915,  c.  237,  §  17. 

17  See  Preliminary  Report  of  Commissioners  to  Consolidate  the  General 
Laws,  p.  111. 

18  St.  1918,  c.  257,  §§  46,  47,  now  contained  in  G.  L.  c.  60,  §  37,  infra, 
page  349. 

19  Cone  v.  Forest,  126  Mass.  97  (1879). 

20  Oakham  v.  Hall,  112  Mass.  535  (1873);  Davis  v.  Boston,  129  Mass.  377 
(1880). 


310  Taxation   in   Massachusetts 

[G.  L.  c.  59,  §§  79-81  inc. 
and  such  division  has  been  duly  recorded  in  the  registry  of  deeds, 

the  assessors,  at  any  time  before  said  real  estate  has  been  advertised 
for  sale  for  non-payment  of  taxes,  upon  the  written  request  of  the 
owner  or  mortgagee  of  any  portion  thereof,  shall  apportion  said  tax, 
with  costs  and  interest  upon  the  several  parcels  thereof,  in  proportion 
to  the  value  of  each,  and  only  the  portion  of  said  tax,  interest  and 
costs  so  apportioned  upon  any  such  parcel  shall  continue  to  be  a  lien 
upon  it;  and  the  owners  or  mortgagees  shall  be  liable  only  for  the 
tax  apportioned  upon  the  parcel  owned  in  whole  or  in  part  by  them 
respectively. 

Section  80.  Assessors  shall  send  notice  of  the  request  for  such 
apportionment  and  of  the  time  appointed  therefor,  by  mail,  to  every 
person  interested  in  said  real  estate  whose  address  is  known  to  them. 

Section  81.  A  person  aggrieved  by  any  action  of  the  assessors 
in  making  such  apportionment  may  within  seven  days  thereafter 
appeal  in  like  manner  as  in  case  of  an  overassessment,  and  the  de- 
cision upon  such  appeal  shall  be  final. 

Prior  to  1878  there  was  no  provision  for  apportioning  a  tax 
upon  real  estate  divided  after  the  assessment,  and  in  such  case 
a  re-assessment  could  not  legally  be  made,  as  the  original  assess- 
ment would  be  valid.  It  was  held  however  that  if  a  reassess- 
ment in  the  nature  of  an  apportionment  was  requested  by  the 
owners  of  the  land  and  the  owners  made  an  express  promise  to 
pay  the  tax  thus  re-assessed,  they  could  not  afterward  set  up  the 
lack  of  authority  of  the  assessors  to  make  the  re-assessment 
and  could  be  held  on  their  promise  in  an  action  by  the  collector.1 
Since  the  enactment  of  the  statute  relating  to  apportionment 
in  1878 2  persons  who  request  an  apportionment  are  not  person- 
ally liable  for  their  portion  of  the  tax,  as  the  procedure  is  wholly 
statutory  and  the  only  method  provided  by  the  statute  for 
enforcing  such  tax  is  through  the  lien  on  the  fractional  parcel.3 
The  right  to  an  'apportionment  of  a  tax  upon  real  estate  sub- 
sequently divided  does  not  continue  after  the  lien  as  to  such 
parts  of  the  real  estate  as  have  been  alienated  has  expired.4 

i  Burr  v.  Wilcox,  13  Allen  269   (1866). 

2  St.  1878,  c.  182.  The  statute  has  not  been  amended  since  its  enactment 
except  by  St.  1913,  c.  599,  §  1,  which  limited  the  right  to  an  apportionment  to  the 
time  before  the  land  was  advertised  for  sale  for  non-payment  of  taxes.  Pre- 
viously it  could  be  apportioned  any  time  before  the  sale  took  place. 

3  Rogers  v.  Gookin,  198  Mass.  434  (1908). 

4  Salisbury  Beach  Associates  v.  Assessors  of  Salisbury,  225  Mass.  399  (1917). 


Assessment  op  Local  Taxes  311 

G.  L.  c.  59,  §  82] 

Persons  who  orally  request  the  assessors  to  apportion  a  tax 
and  after  receiving  the  bill  apply  for  an  abatement  of  their  por- 
tion on  the  sole  ground  that  the  tax  was  too  high  cannot  sub- 
sequently in  proceedings  to  enforce  payment  of  the  tax  as  appor- 
tioned object  to  the  validity  of  the  apportionment  on  the  ground 
that  their  own  request  was  not  in  writing,  or  that  notice  of  their 
request  was  not  given  to  other  persons  interested  in  the  land 
originally  assessed.5 

Assessment  Partially  Invalid 

Section  82.  If,  by  reason  of  an  erroneous  or  illegal  assessment 
or  apportionment  of  taxes,  a  person  is  assessed  more  than  his  due 
proportion,  the  tax  and  assessment  shall  be  valid  except  as  to  the 
illegal  excess. 

This  statute  has  no  reference  to  a  mere  over-assessment  of 
a  taxpayer,  whether  caused  by  assessing  him  for  property  which 
he  does  not  own  or  which  is  not  taxable  or  by  overvaluing  taxable 
property  which  he  owns.  In  such  cases  the  taxpayer  has  always 
had  his  remedy  by  petition  for  abatement  but  has  never  been 
permitted  to  treat  the  assessment  as  invalid  or  illegal,  unless 
he  had  no  property  subject  to  taxation  within  the  city  or  town 
and  consequently  was  not  within  the  jurisdiction  of  the  assessors.1 
This  statute  applies  to  an  assessment  levied  to  meet  appropria- 
tions which  include  proposed  expenditures  for  purposes  for  which 
the  town  cannot  lawfully  expend  money,  or  which  in  some  other 
particular  is  illegal  as  to  a  portion  of  the  amount  sought  to  be 
levied;  and  in  such  cases  but  for  the  provisions  of  this  statute 
the  assessment  would  be  wholly  invalid. 

It  was  at  first  held  in  a  case  more  hotly  contested  on  the 
merits  than  on  the  form  of  procedure  that  when  an  assessment 
was  partially  invalid  by  reason  of  including  an  appropriation 
for  a  purpose  for  which  the  town  could  not  lawfully  spend 
money,  a  person  who  was  compelled  to  pay  the  tax  could  re- 
cover back  only  that  portion  of  it  which  represented  his  share 
of  the  illegal  appropriation;2  but  subsequently  the  court  held 
that  in  case  of  partial  invalidity,  whether  due  to  the  assessment 
exceeding  the  amount  required  to  be  raised,3  to  the  inclusion  of 

5  Rogers  v.  Gookin,  198  Mass.  434  (1908).   - 

1  Infra  page  400. 

2  Torrey  v.  Millbmy,  21  Pick.  64  (1838). 

3  Joyner  v.  School  District  in  Egremont,  3  Cush.  567  (1849). 


312  Taxation   in   Massachusetts 

[G.  L.  c.  59  §  82 

items  of  appropriation  for  which  the  town  could  not  lawfully 
expend  money,4  or  to  non-compliance  with  the  statutes  relating 
to  the*  apportionment  of  the  state  tax,5  the  entire  tax  might 
be  recovered  back.  The  result  of  these  decisions  was  that  a 
town  might  lose  the  entire  tax  of  a  year  by  reason  of  illegally 
appropriating  a  hundred  dollars  to  celebrate  the  fourth  of  July 
or  for  some  similar  trivial  irregularity,  and  by  suit  brought  any 
time  within  six  years  after  the  tax  was  paid.  To  remedy  this 
situation  a  statute  was  enacted  in  1859  a  portion  of  which  ap- 
pears above.  Other  portions  provided  for  the  re-assessment  of 
taxes  erroneously  assessed,6  and  limited  the  time  to  three  months 
in  which  an  action  to  recover  back  taxes  might  be  brought;7  so 
that  since  1859  there  has  been  little  to  be  gained  by  picking  flaws 
in  proceedings  for  the  assessment  of  taxes  which  do  not  cause 
substantial  injustice.8 

It  is  perfectly  obvious  from  a  study  of  the  causes  which 
led  to  the  passage  of  the  statute  in  question  9  that  it  did  not 
change  the  unit  of  taxation,  or  allow  recovery  in  an  action  at 
common  law  in  case  of  over-asssessment.  It  assumes  that  the 
tax  of  which  it  speaks  would  have  been  void  altogether  and 
recovered  as  a  whole  but  for  its  enactment,  and  proceeds  to 
modify  that  consequence,  but  does  not  create  a  liability  which 
did  not  previously  exist.10 

Even  before  1859  a  taxpayer  could  not  recover  from  a  town 
his  proportionate  share  of  money  illegally  paid  out  by  the  town.11 
The  action  at  common  law  which  could  be  maintained  against 
a  town  was  based  upon  a  tax  for  an  illegal  purpose  and  not 
upon  illegal  payments  of  money  previously  lawfully  raised  by 
taxation. 

4  Gerry  v.  Stoneham,  1   Allen  319   (1861). 

5  Goodrich  v.  Lunenburg,  9  Gray  38  (1857);  Gerry  v.  Stoneham,  1  Allen  319 
(1861). 

6  G.  L.  c.  59,  §  77,  supra  page  306. 

7  G.  L.  c.  60,  §  98,  infra  page  400. 

8  Since  1847  a  means  has  been  provided  by  statute  for  contesting  the  expen- 
diture of  money  by  a  city  or  town  for  an  alleged  illegal  purpose  by  petition  in 
equity  brought  by  ten  taxable  inhabitants.    G.  L.  c.  40,  §  53,  supra  page  147. 

9  It  was  said  in  Cone  v.  Forest,  126  Mass.  97  (1879),  that  the  statute  was 
probably  passed  in  consequence  of  the  decision  in  Goodrich  v.  Lunenburg,  9 
Gray  38    (1857). 

10  Schwartz  v.  Boston,  151  Mass.  226  (1890). 

11  Withington  v.  Harvard,  8  Cush.  66   (1851). 


Assessment  of  Local  Taxes  313 

G.  L.  c.  59,  §§  83-85  inc.] 

Return  by  Assessors  of  Property  of  Corporations 

Locally  Taxable 

Section  83.  Assessors  shall  annually,  on  or  before  the  first 
Monday  of  July,  return  to  the  commissioner  the  names  of  all  domestic 
and  foreign  corporations,  except  banks  of  issue  and  deposit,  having 
a  capital  stock  divided  into  shares,  organized  for  the  purposes  of 
business  or  profit  and  established  in  their  respective  towns  or  owning 
real  estate  therein,  and  a  detailed  statement  of  the  works,  structures, 
real  estate,  machinery,  poles,  underground  conduits,  wires  and  pipes 
owned  by  each  of  said  corporations  and  situated  in  such  town,  with 
the  value  thereof,  on  April  first  preceding,  and  the  amount  at  which 
the  same  is  assessed  in  said  town  for  the  then  current  year.  An 
assessor  neglecting  to  comply  with  this  section  shall  be  punished  by 
a  fine  of  one  hundred  dollars. 

The  object  of  this  provision  is  to  assist  the  commissioner  in 
the  assessment  of  the  corporate  franchise  tax ;  but  the  failure  of 
the  assessors  to  make  the  returns  does  not  affect  the  validity 
of  the  tax.  The  commissioner,  in  such  case,  may  ascertain  the 
necessary  facts  otherwise.1  In  the  consolidation  of  the  laws  of 
1921  the  provisions  as  to  domestic  and  foreign  corporations  were 
made  the  same,  to  accord  with  the  new  method  of  taxing  foreign 
corporations. 

Other  Returns  Required  of  Assessors 

Section  84.  If  the  assessors  of  a  town  ascertain  that  the  aggre- 
gate valuation  thereof  has  been  diminished  since  April  first  of  the 
preceding  year,  they  shall  return  with  the  table  of  aggregates,  or  with 
the  books,  which  they  are  required  by  sections  forty-seven,  forty- 
eight  and  forty-nine  to  deposit  in  the  office  of  the  commissioner,  a 
statement,  on  oath,  of  the  causes  which  in  their  opinion  have  pro- 
duced such  diminution. 

Section  85.  Assessors  shall  annually,  on  or  before  September 
first,  make  a  return  to  the  commissioner,  in  such  form  as  he  may  pre- 
scribe, of  the  value  of  property  exempted  from  taxation  under  clauses 
twenty-second  and  twenty-third  of  section  five,  together  with  the 
amount  of  taxes  which  would  have  been  assessed  on  such  property  but 
for  said  exemption. 

1  Commonwealth  v.  New  England  Slate  and  Tile  Co.,  13  Allen  391  (1866). 


314  Taxation   in    Massachusetts 

[G.L.c.  59,  §§86,87 
Section  86.  Assessors  shall  annually,  on  or  before  October 
first,  forward  to  the  commissioner  a  statement  showing  the  whole 
amount  of  exempted  property  entered  upon  the  valuation  lists  of  their 
respective  towns  in  accordance  with  section  fifty-one,  and  the  amount 
in  each  class,  and  stating  separately  the  aggregate  amount  belonging 
to  each  class  embraced  in  clause  third  of  section  five,  and  shall  also 
forward  such  lists  and  statements  required  by  section  twenty-nine 
relative  to  real  and  personal  property  exempt  from  taxation  under  said 
clause  as  have  been  received  by  them. 

The  penalty  for  failure  to  comply  with  section  eighty-four 
is  a  fine  of  not  more  than  two  hundred  dollars.1  No  penalty 
appears  to  have  been  provided  for  failure  to  comply  with  sec- 
tions eighty-five  or  eighty-six. 

Personal  Liability  of  Assessors 

Section  87.  Assessors  shall  not  be  responsible  for  the  assess- 
ment of  a  tax  assessed  by  them  in  pursuance  of  a  vote  for  that  pur- 
pose, certified  to  them  by  the  clerk  or  other  proper  officer  of  a  city, 
town  or  district,  except  for  the  want  of  integrity  and  fidelity  on 
their  own  part. 

Until  the  close  of  the  first  quarter  of  the  last  century  the 
customary  and  recognized  method  of  contesting  the  validity 
of  a  tax  was  to  refuse  to  pay  it,  and  when  the  collector  attempted 
to  enforce  payment  by  distress  or  imprisonment,  to  bring  an 
action  of  trespass  against  the  assessors.  This  action  filled  the 
place  now  occupied  by  the  action  for  money  had  and  received 
against  the  city  or  town  and  was  subject  to  the  same  restrictions; 
the  action  would  not  lie  if  the  objection  to  the  tax  was  merely 
that  it  was  an  over-assessment;1  but  a  partial  invalidity  of 
the  tax  justified  an  action  for  the  full  amount.2  The  action 
had  one  advantage  over  its  modern  substitute,  for  the  damages 
were  not  limited  to  the  amount  of  the  tax  and  interest  but 
covered  all  loss  to  which  the  plaintiff  was  put — in  case  of  dis- 
tress the  value  of  the  goods  distrained  minus  any  surplus  re- 
turned to  the  owner,  thus  including  both  the  costs  of  distress 

1  See  G.  L.  c.  59,  §  94,  infra  page  319. 

1  Dillingham  v.  Snow,  5  Mass.  547  (1809);  Little  v.  Greenleaf,  7  Mass. 
236  (1810). 

2  Stetson  v.  Kempton,  13  Mass.  272  (1816);  Libby  v.  Burnham,  15  Mass. 
144  (1818). 


Assessment  of  Local  Taxes  315 

G.  L.  c.  59,  §  87] 

and  the  difference  between  the  value  of  the  goods  and  the  price 
that  they  brought  at  a  forced  sale.3 

The  assessors  could  not  be  held  liable  for  taxing  a  person 
at  his  own  request;4  and  if  they  relied  for  their  justification 
upon  the  action  of  a  town  meeting  which  the  return  of  the 
warrant  showed  to  be  legally  warned,  a  person  assessed  was  not 
permitted  to  show  that  the  return  was  not  true  in  fact.5  The 
vote  of  the  town  authorizing  the  assessment  of  a  tax  was  however 
no  defense,  if  the  purpose  was  one  for  which  money  could  not 
lawfully  be  expended  by  a  town.6  The  fact  that  the  vote  of 
the  town  was  unanimous  was  no  defense  against  a  person  who 
was  not  himself  present  at  the  meeting.7 

In  view  of  this  onerous  liability,  and  the  meagre  emoluments 
of  the  office,  it  is  not  surprising  that  the  legislature  was  obliged 
to  impose  a  severe  penalty  upon  any  person  chosen  to  serve  as 
assessor  who  failed  to  take  the  oath  of  office,8  and  in  1823  a 
statute  limiting  the  personal  liability  of  assessors  was  enacted. 
It  exempted  them  from  all  responsibility  for  the  assessment  of 
taxes  which  they  were  properly  required  to  assess  "  except  for 
their  own  integrity  and  fidelity."  This  statute  did  not  receive 
a  liberal  construction,  and  was  held  not  to  include  taxes  assessed 
for  school  districts,9  nor  to  protect  assessors  from  their  mistakes 
in  assessing  individuals  who  by  their  residence  or  otherwise 
were  not  liable  to  be  assessed,  because  the  assessors  were  not, 
within  the  meaning  of  the  statute,  "  required  "  to  assess  such 
persons.10  The  statute  was'however  held  to  protect  the  assessors 
not  only  from  errors  in  judging  of  the  validity  of  the  require- 
ments of  their  towns,  but  also  from  accidental  mistakes  in  the 
assessment.11 

In  1836,  when  the  Revised  Statutes  were  enacted,  the  remedy 

3  Libby  v.  Burnham,  15  Mass.  144  (1818);  Inglee  v.  Bosworth,  5  Pick.  498 
(1827).  • 

4  Pease  v.  Whitney,  8  Mass.  93  (1811). 

5  Saxton  v.  Nimms,  14  Mass.  315  (1817) ;  Thayer  v.  Stearns,  1  Pick.  109 
(1822). 

6  Stepson  v.  Kempton,  13  Mass.  272  (1816). 

7  Stetson  v.  Kempton,  13  Mass.  272  (1816). 

8  St.  1875,  c.  50,  §  1.  This  provision  was  not  repealed  until  1918  (St.  1918, 
c.  291.  §12). 

9  Little  v.  Merrill,  10  Pick.  543  (1830);  Baker  v.  Allen,  21  Pick.  382  (1838). 
10  Gage  v.   Currier,  4  Pick.   399    (1826);    Inglee   v.   Bosworth,  5   Pick.  498 

(1827);  Freeman  v.  Kenney,  15  Pick.  44  (1833);  Baker  v.  Allen,  21  Pick.  382 
(1838). 

11  Ingraham  v.  Doggett,  5  Pick.  451    (1827). 


316  Taxation   in   Massachusetts 

[G.L.c.  59,  §87 
by  action  of  contract  against  the  town  had  been  judicially  rec- 
ognized and  established,  and  the  exemption  of  assessors  from 
personal  liability  was  thereupon  extended  by  the  codification 
which  then  took  place  to  substantially  its  present  form,  so  as  to 
include  all  the  corporations  for  which  assessors  were  required  to 
assess  taxes  and  to  protect  assessors  from  liability  for  accidental 
errors  in  taxing  those  who  were  not  liable  to  be  taxed.12  While 
acting  within  their  appropriate  sphere  they  were  given  the  same 
protection  and  immunities  which  judicial  officers  have,13  and 
when  a  tax  was  duly  voted  by  a  town  or  district  and  certified 
by  its  clerk,  an  action  against  the  assessors  could  not  be  main- 
tained in  the  absence  of  proof  of  want  of  integrity  and  fidelity 
on  their  part.14 

Assessors  however  are  still  liable  for  assessing  taxes  on  be- 
half of  a  town  or  district  which  has  no  legal  existence,15  even 
in  pursuance  of  a  vote  certified  to  them  by  one  acting  as  clerk 
of  the  town  or  district,10  and  in  an  action  against  the  assessors  the 
burden  is  on  them  of  showing  that  the  town  or  district  was 
legally  established.17  Exemption  in  such  a  case  does  not  come 
within  the  literal  meaning  of  the  statute,  and  the  person  assessed 
would  have  no  other  remedy,  for  he  could  not  recover  the  tax 
from  a  corporation  which  did  not  exist.  Assessors  are  liable 
also  when  an  assessment  made  by  them  is  not  authorized  by 
law  or  not  made  in  pursuance  of  any  vote  of  the  town18  and 
they  may  be  liable  if  the  collector  dies  and  they  commit  to  his 
successor,  as  unpaid,  taxes  which  have  in  fact  been  paid;19  but 
their  liability  in  such  a  case,  if  they  acted  in  good  faith,  is  open 
to  question  although  the  statute  does  not  in  terms  apply  to 
such  a  situation. 

In  an  action  against  persons  acting  as  assessors  for  causing 
a  person  to  be  arrested  for  non-payment  of  a  tax,  if  the  town 

12  Baker  v.  Allen,  21  Pick.  382  (1838). 

13  Baker  v.  Allen,  21   Pick.  382   (1838). 

14  Howard  v.  Stevens,  3  Allen  409  (1862). 

15  Withington  v.  Eveleth,  7  Pick.  106  (1828)  rBassett  v.  Porter,  4  Cush. 
487  (1849) ;  Dickinson  v.  Billings,  4  Gray  42  (1855) ;  Durant  v.  Eaton,  98  Mass. 
469  (1868);  Judd  v.  Thompson,  125  Mass.  553  (1878). 

16  Judd  v.  Thompson,  125  Mass.  553  (1878). 

17  Bassett  v.  Porter,  4  Cush.  487  (1849) ;  Dickinson  v.  Billings,  4  Gray  42 
(1855). 

18  Eames  v.  Johnson,  4  Allen  382  (1862). 

19  Lawrence  v.  Kimball,  1  Met.  524  (1840). 


Assessment  of  Local  Taxes  317 

G.  L.  c.  59,  §  88] 

records  do  not  show  that  the  assessors  were  duly  sworn,  parol 
evidence  is  admissible  to  prove  the  fact.20 

In  an  action  brought  by  a  town  against  its  assessors  for  assess- 
ing taxes  in  such  a  way  that  the  town  suffers  financial  loss,  the 
assessors  are  not  liable,  at  any  rate,  when  there  has  been  no 
want  of  integrity  and  fidelity  on  their  part,  but  only  ordinary 
negligence.21  A  civil  action  does  not  lie  in  favor  of  a  town  against 
persons  chosen  as  assessors  for  failure  to  take  the  oath  of  office.22 

Compensation  of  Assessors 

Section  88.  Each  assessor  shall  be  paid  by  his  town  three  dollars 
and  fifty  cents  a  day  for  every  whole  day  in  which  he  is  employed 
in  that  service,  and  such  additional  compensation  as  the  town  allows. 

An  assessor  is  entitled  to  his  statutory  compensation  at  all 
events,  and  more  if  the  town  votes  it;  but  if  the  town  votes  a 
gross  sum  as  the  salary  or  compensation  of  the  assessors,  and 
this  sum  is  in  excess  of  the  statutory  compensation,  the  sum  so 
voted  constitutes  the  entire  compensation  of  the  assessors,  and 
they  are  not  entitled  to  the  statutory  per  diem  payment  in  ad- 
dition, unless  such  plainly  appears  to  be  the  intent  of  the  vote.1 
If  the  sum  voted  does  not  equal  the  statutory  amount,  the 
vote  may  be  disregarded.  A  town  cannot  lawfully  vote  to  com- 
pensate its  assessors  for  work  performed  in  connection  with  the 
assessment  of  taxes  but  of  a  character  not  required  by  the  stat- 
utes.2 A  town  cannot  be  charged  as  trustee  of  an  assessor  of 
taxes  for  the  compensation  fixed  by  statute.3  The  assessors  are 
public  officers,  and  in  such  case  the  town  enters  into  no  contract 
with  them  for  their  services.  When  however  the  salary  of  an 
assessor  is  fixed  by  vote  of  the  town  or  by  other  lawful  means 
so  as  to  create  a  contractual  obligation,  the  amount  so  payable 
may  be  attached  by  trustee  process.4 

20  Pease  v.  Smith,  24  Pick.  122  (1834). 

21  First  Parish  in  Sherburne  v.  Fiske,  8  Cush.  264  (1851) ;  Lincoln  v.  Chapin, 
132  Mass.  470   (1882). 

22  First  Parish  in  Sherburne  v.  Fiske,  8  Cush.  264  (1851). 

1  Moody  v.  Newburyport,  3  Met.  431  (1841) ;  Welch  v.  Emerson,  206  Mass. 
129  (1910). 

2  Gile  v.  Perkins,  207  Mass.  172  (1911).  In  this  case  the  town  attempted  to 
have  a  decennial  valuation  prepared  and  published  between  two  annual  assess- 
ments. 

3  Walker  v.  Cook.  129  Mass.  577  (1880). 

4  Hooker  v.  McLennan,  236  Mass.  117  (1920). 


318  Taxation  in   Massachusetts 

[G.  L.  c.  59,  §§  89-92  inc. 

Penalties  for  Evasion  of  Taxation 

Section  89.  Whoever  in  any  way  directly  or  indirectly  proposes 
or  agrees  to  an  assessment  on  any  specific  or  limited  amount  less  than 
that  for  which  he  may  lawfully  be  taxed,  with  the  purpose  of  making, 
or  as  an  inducement  to  make,  any  particular  place  his  residence  or 
place  of  business,  and  an  assessor  guilty  of  making  or  assenting  to 
any  such  proposal,  shall  be  punished  by  a  fine  of  one  thousand  dollars. 

Section  90.  Whoever  avoids  taxation  by  wilfully  and  design- 
edly changing  or  concealing  his  residence,  or  by  any  other  act  with 
the  intent  so  to  avoid  taxation,  shall  be  punished  by  a  fine  of  twice 
the  amount  of  the  last  tax  paid  by  him,  or,  if  he  has  paid  no  tax 
in  the  commonwealth,  by  a  fine  of  not  less  than  one  hundred  nor 
more  than  five  thousand  dollars;  and  he  may  be  indicted  either  in 
the  county  where  any  of  the  acts  or  things  made  criminal  by  this 
section  are  done  or  in  the  county  where  he  is  liable  to  taxation. 

Section  91.  Whoever,  with  intent  to  defeat  or  evade  any  provi- 
sion of  law  as  to  the  assessment  or  payment  of  taxes,  delivers  or 
discloses  to  an  assessor  or  assistant  assessor  a  false  or  fraudulent  list, 
return  or  schedule  of  property,  as  and  for  a  true  list  of  his  estate  not 
exempt  from  taxation,  shall  be  punished  by  a  fine  of  not  more  than 
one  thousand  dollars  or  by  imprisonment  for  not  more  than  one  year. 

Section  92.  Keepers  of  taverns  and  boarding  houses  and  masters 
and  mistresses  of  dwelling  houses,  upon  application  of  an  assessor 
or  assistant  assessor  of  the  town  where  their  house  is  situated,  shall 
give  the  names  of  all  persons  residing  therein  liable  to  be  assessed 
for  taxes.  Every  such  keeper,  master  or  mistress  refusing  to  give 
such  information,  or  knowingly  giving  false  information,  shall  be 
punished  by  a  fine  of  twenty  dollars. 

Sections  eighty-nine  and  ninety  were  never  strictly  enforced, 
and,  it  is  to  be  suspected,  were  constantly  violated,  in  the  years 
when  it  was  attempted  to  tax  intangible  property  on  its  capital 
value.  Since  the  enactment  of  the  income  tax  law  and  the  legisla- 
tion of  1918  changing  the  method  of  taxing  tangible  personal 
property,  they  are  of  little  importance. 

A  man  may  lawfully  change  his  domicile  from  one  town  to 
another  merely  because  he  wishes  to  diminish  the  amount  of 
his  taxes.  Section  ninety  does  not  deprive  any  man  of  the 
liberty  of  residing  where  he  pleases  or  of  changing  his  residence 


Collection  of  Local  Taxes  319 

G.L.c.  59,  §§93,94] 

as  frequently  as  he  desires;  if  he  really  intends  to  change  his 
residence  and  does  change  it  the  motive  which  prompts  him  to 
do  it  is  not  material.1  The  statute  merely  subjects  him  to  a 
penalty  if  he  escapes  taxation  by  designedly  changing  or  con- 
cealing his  residence  for  that  purpose.  The  wish  to  change 
residence  for  the  purpose  of  reducing  taxes  does  not  tend  to  show 
any  want  of  a  real  intention  to  change,  but  rather  the  contrary.2 
The  "  other  act,"  the  commission  of  which  wilfully  and  de- 
signedly for  the  purpose  of  avoiding  taxation  results  in  such 
avoidance,  and  which  is  made  indictable  by  this  statute,  has 
never  been  defined  by  the  supreme  court.  It  is  plain  that  a 
mere  failure  to  act,  such  as  neglecting  to  return  a  list  of  taxable 
property  or  to  file  a  probate  account,  would  not  come  within  the 
provisions  of  this  section.  Filing  a  false  list  is  specially  covered 
by  section  ninety-one;  and  it  would  be  open  to  argument  at 
least  that  "  avoiding  taxation  "  when  coupled  with  provisions 
relating  to  concealed  residence  means  avoiding  it  altogether,  so 
that  no  other  intentional  act  merely  misleading  the  assessors 
as  to  the  amount  of  taxable  property  of  a  person  subject  to 
taxation  would  be  covered  by  the  statute  now  under  considera- 
tion. 

Penalties  for  Neglect  by  Assessors 

Section  93.  An  assessor  who  neglects  to  assess  a  state,  county 
or  district  tax  required  by  law  shall  be  punished  by  a  fine  of  not  more 
than  two  hundred  dollars. 

Section  94.  An  assessor  who  neglects  to  comply  with  sections 
forty-six,  forty-seven,  forty-eight,  forty-nine  or  eighty-four  shall  be 
punished  by  a  fine  of  not  more  than  two  hundred  dollars. 


CHAPTER   60 
COLLECTION   OF  LOCAL  TAXES 

Definitions 

Section  1.  Terms  used  in  this  chapter  shall,  unless  other  meaning 
is  clearly  apparent  from  the  context,  or  unless  inconsistent  with  the 
manifest  intent  of  the  legislature,  be  construed  as  follows: 

1  Lyman  v.  Fiske,  17  Pick.  231  (1835);  Draper  v.  Hatfield,  124  Mass.  53 
(1878);  Thayer  v.  Boston,  124  Mass.  132  (1878). 

2  Thayer  v.  Boston,  124  Mass.  132  (1878). 


320  Taxation   in   Massachusetts 

[G.  L.  c.  60,  §  1 
"  Collector,"  a  person  receiving  a  tax  list  and  a  warrant  to  collect 

the  same. 

"  Publication,"  as  applied  to  any  notice,  advertisement  or  other 
instrument,  the  publication  of  which  is  required  by  law,  shall  mean 
the  act  of  printing  it  for  three  successive  weeks  in  a  newspaper  pub- 
lished in  the  town,  if  any,  otherwise  in  the  county,  where  the  land  or 
other  property  to  which  the  notice  or  other  instrument  relates  is  sit- 
uated. The  last  publication  shall  be  made  at  least  one  week  prior  to 
the  date  stated  for  the  occurrence  of  the  event  to  which  the  publica- 
tion relates. 

"  Registry  of  deeds,"  the  registry  of  deeds  for  the  county  or  dis- 
trict where  the  land  taxed  lies. 

"  Service,"  as  applied  to  any  notice,  summons,  demand  or  other 
paper,  shall,  except  as  otherwise  provided  in  section  sixteen,  mean 
delivering  it  or  a  copy  to  the  person  for  whom  it  is  intended,  or 
leaving  it  or  a  copy  at  his  last  and  usual  place  of  abode  or  of 
business,  or  sending  it  or  a  copy  by  mail  postpaid  addressed  to  him 
at  his  last  and  usual  place  of  abode  or  of  business  or,  if  such  notice, 
summons  or  other  paper  relates  to  taxes  on  land,  posting  it  or  a  copy 
conspicuously  in  some  convenient  and  public  place  and  sending  a  copy 
by  mail  postpaid  addressed  to  the  person  for  whom  it  is  intended  at 
the  town  where  such  land  lies.  Such  service  shall  be  sufficient  whether 
made  by  the  then  collector  of  taxes  or  by  any  predecessor. 

The  affidavit  of  the  collector,  deputy  collector,  sheriff,  deputy 
sheriff  or  constable  serving  the  notice,  summons,  demand  or  other 
paper  of  the  manner  of  service  shall  be  kept  on  file  in  the  office  of 
the  collector,  and  shall  be  prima  facie  evidence  that  the  same  was 
so  served. 

The  provisions  for  the  assessment  of  taxes  contained  in 
chapter  fifty-nine  and  the  provisions  for  the  collection  of  taxes 
contained  in  chapter  sixty  constitute  together  the  whole  system 
of  legislation  for  local  taxes,  each  chapter  being  essential  to  the 
system.  When  practicable  the  provisions  of  each  chapter 
should  be  so  interpreted  as  not  to  clash  with  the  efficient  action 
of  the  other,  to  the  end  that  there  may  be  harmony  in  the 
working  of  the  whole.1 

1  Curtiss  v.  Sheffield,  213  Mass.  239,  242  (1913). 


Collection  of  Local  Taxes  321 

G.L.c  60,  §2] 

General  Duties  of  Collectors 

Section  2  (as  amended  by  St.  1921,  chap.  124).  Every  collector 
of  taxes,  constable,  sheriff  or  deputy  sheriff,  receiving  a  tax  list  and 
warrant  from  the  assessors,  shall  collect  the  taxes  therein  set  forth, 
with  interest,  and  pay  over  said  taxes  and  interest  to  the  town  treas- 
urer according  to  the  warrant,  and  shall  make  written  return  thereof 
with  his  tax  list  and  of  his  doings  thereon  at  such  times  as  the  assess- 
ors shall  in  writing  require.  He  shall  also  give  to  the  treasurer  an 
account  of  all  charges  and  fees  collected  by  him.  In  towns,  not 
cities,  he  shall,  on  or  before  the  fifth  day  of  each  month,  pay  over 
to  the  town  treasurer  all  money  received  by  him  during  the  preceding 
month  on  account  of  taxes  and  interest. 

It  is  the  duty  of  a  collector  or  other  officer  to  whom  a  tax 
list  and  warrant  are  committed  to  collect  the  taxes  included 
in  the  list  and  warrant,  and  the  law  provides,  as  will  be  seen, 
five  different  methods  for  such  collection  —  arrest,  distress,  suit, 
sale  of  land  and  injunction  —  besides  the  right  of  withholding 
the  amount  of  taxes  from  money  due  to  the  delinquent  from 
the  city  or  town.  While  all  these  remedies  might  not  be  avail- 
able in  every  case,  it  is  now  well  settled  that  they  are  cumula- 
tive *  and  that  even  the  usual  and  effective  means  of  collecting 
a  tax  upon  real  estate  by  the  sale  of  the  land  is  not  exclusive 
of  the  right  to  resort  to  personal  remedies  against  the  individuals 
assessed.2 

The  earliest  statutes  provided  as  a  general  means  for  the 
collection  of  all  taxes,  whether  assessed  upon  persons  by  reason 
of  their  ownership  of  land  or  for  other  causes,  a  distress  of  the 
goods  and  upon  failure  to  find  sufficient  chattels  for  the  levy, 
an  arrest  of  the  person.3  The  power  to  sell  real  estate  first 
appeared  in  1731  as  the  only  available  means  for  collecting 
taxes  upon  the  unimproved  lands  of  non-resident  proprietors.4 

1  Boston  v.  Turner,  201  Mass.  190  (1909). 

2  Hayden  v.  Foster,  13  Pick.  492.  495  (1833);  Sherwin  v.  Boston  Five  Cents 
Savings  Bank,  137  Mass.  444  (1884) ;  Richardson  v.  Boston,  148  Mass.  508  (1889); 
Dunham  v.  Lowell,  200  Mass.  468  (1909). 

3  Colonial  Laws  of  1672  (Whitmore's  ed.)  24;  Prov.  Laws,  1692-93,  c.  27, 
§2;  c.  28,  §6;  c.  41,  §7;  1693-94,  c.  20,  §17;  1698,  c.  5,  §1;  1699-1700,  c.  26, 
§§13-15;  1730,  c.  1,  §§12-15;  1756-57,  c.  11;  St.  1785,  c.  50,  §6;  c.  70,  §§2, 
5,  8,  10,  14;  R.  S.,  c.  8,  §  §  7,  11. 

4  Prov.  Laws,  1731-2,  c.  9;  1745-6,  c.  9;  St.  1785,  c.  70,  §7;  St.  1794,  c.  68; 
R.  S.  c.  8,  §  19.    Rising  v.  Granger,  1  Mass.  47  (1804)'. 


322  Taxation   in   Massachusetts 

[G.  L.  c.  60,  §  2 
It  was  later  extended  to  lands  the  owners  of  which  had  removed 
and  to  some  cases  of  taxes  assessed  to  persons  in  possession  who 
were  not  owners.5  In  1822  taxes  on  real  estate  in  Boston  were 
made  a  lien  in  all  cases 6  and  two  years  later  the  lien  was  made 
general  throughout  the  commonwealth.7 

In  1789  collectors  were  given  the  right  to  maintain  an  action 
at  law  to  recover  a  tax  when  a  person  duly  assessed  died  or 
removed  from  the  town,  or  being  an  unmarried  woman,  married, 
without  paying  the  tax,8  and  in  1859  the  collector's  right  of 
action  was  extended  to  all  cases  in  which  the  taxes  remained 
unpaid  for  one  year  after  commitment  to  him;9  the  period  was 
reduced  to  three  months  in  1888.10 

The  right  to  have  a  foreign  corporation  or  non-resident  per- 
son failing  to  pay  a  tax  enjoined  from  carrying  on  business  was 
first  given  in  1902  ;X1  and  the  power  to  withhold  money  due 
from  the  city  or  town  to  a  delinquent  taxpayer  in  1878.12 

Besides  the  methods  of  collection  directly  provided  by  statute 
the  charters  of  some  cities  permit  the  establishment  of  further 
and  additional  methods ;  and  an  ordinance  providing  such  means 
is,  if  reasonable,  valid.13 

A  common  law  assignment  of  a  person  in  failing  circum- 
stances, in  trust  for  the  payment  of  taxes  and  debts,  creates  a 
situation  which  justifies  the  courts  upon  the  general  principles 
of  equity  jurisprudence  in  intervening  to  prevent  the  failure  or 
maladministration  of  the  trust  and  in  allowing  the  collector  to 
maintain  a  bill  in  equity  to  compel  such  a  trustee  to  pay  a  tax 
lawfully  assessed  upon  the  assignor.14  The  collector  of  the  mu- 
nicipality has  also  been  allowed  to  intervene  in  equitable  pro- 
ceedings for  the  purpose  of  securing  the  payment  of  a  tax.15 

While  there  appears  to  be  some  conflict  in  the  decisions  of 

»  St.   1785,  c.   70,   §  §  6,   15. 
e  St.  1821,  c.  107,  §9;  St.  1822,  c.  108,  §9. 

»  St.  1823,  c.  133,  §  9;  R.  S.  c.  8,  §  18.    See  also  Curtiss  v.  Sheffield,  213 
Mass.  239  (1913). 
s  St.  1789,  c.  4. 
9  St.  1859,  c.  171. 
io  St.   1888,  c.  390,   §  24. 
.    J1  St.  1902,  c.  349. 

12  St.  1878,  c.  266,  §  8. 

13  Cheever  v.  Merritt,  5  Allen  563   (1863). 

14  Boston  v.  Turner,  201  Mass.  190  (1909). 

15  Waite  v.  Worcester  Brewing  Co.,  176  Mass.  283   (1900);  City  National 
Bank  v.  Charles  Baker  Co.,   180  Mass.  40   (1901). 


Collection  of  Local  Taxes  323 

G.  L.  c.  60,  §  3] 

the  inferior  federal  courts  as  to  whether  unpaid  taxes  are  debts 
upon  which  to  base  involuntary  bankruptcy  proceedings,  it  would 
seem  that  under  the  Massachusetts  statutes  the  collector's  re- 
lation to  the  person  assessed  is  such  that  he  should  be  allowed 
to  prove  taxes  in  bankruptcy  proceedings.16 

It  goes  without  saying  at  the  present  time  that  taxes  must 
be  collected  in  money,  though  for  many  years  taxes  imposed 
for  the  construction  of  highways  might  be  "  worked  out  "  by  the 
labor  of  persons  assessed.17  If  the  collector  for  his  own  conven- 
ience or  that  of  the  taxpayer  receives  a  check  in  payment  of  a 
tax,  it  is  merely  a  conditional  payment,  and  if  the  check  is  not 
paid  the  tax  can  be  collected  according  to  law. 


18 


Tax  Bill 

Section  3.  The  collector  shall  forthwith,  after  receiving  a  tax 
list  and  warrant,  send  notice  to  each  person  assessed,  resident  or  non- 
resident, of  the  amount  of  his  tax;  if  mailed,  it  shall  be  postpaid 
and  directed  to  the  town  where  the  assessed  person  resided  on  April 
first  of  the  year  in  which  the  tax  was  assessed,  and,  if  he  resides  in 
a  city,  it  shall,  if  possible,  be  directed  to  the  street  and  number  of 
his  residence.  If  he  is  assessed  for  a  poll  tax  only,  the  notice  shall 
be  sent  on  or  before  September  second  of  the  year  in  which  the  tax 
is  assessed.  An  omission  to  send  the  notice  shall  not  affect  the 
validity  either  of  a  tax  or  of  the  proceedings  for  its  collection. 

This  requirement  of  notice  is  distinct  from  the  demand  which 
is  necessary  before  the  collector  takes  steps  to  enforce  the  pay- 
ment of  a  tax,1  and  should  not  be  confused  with  the  demand. 
The  notice  required  by  this  section  is  what  is  ordinarily  re- 
ferred to  as  the  tax  bill.  The  statute  requiring  notice  is  merely 
directory  and  consequently  not  of  importance  in  litigation  arising 
out  of  a  collector's  actions.  It  is  to  be  observed  that  the  notice, 
if  sent  by  mail,  should  be  addressed  to  the  town  in  which  the 
person  assessed  resided  on  the  first  day  of  April,  even  if  the 
collector  is  aware  that  he  has  removed  and  knows  his  new  address. 

16  Boston  v.  Turner,  201   Mass.  190   (1909). 
«  R.  S.   c.  25.  §  11. 

«  Houghton  v.  Boston,  159  Mass.  138  (1893). 
1  G.  L.  c.  60,  §  16,  infra  page  328. 


324  Taxation   in   Massachusetts 

[G.L.c.  60,  §§4-8  inc. 

Collection  of  Poll  Taxes 

Section  4.  A  board  of  assessors,  from  time  to  time  in  any  year 
after  their  preparation  of  the  whole  or  any  part  of  the  lists  of  male 
persons  liable  to  be  assessed  a  poll  tax  as  provided  in  section  four  of 
chapter  fifty-one,  may  and,  on  written  request  from  the  collector 
of  taxes,  shall  assess  the  poll  taxes  of  all  persons  whose  names  are 
contained  in  said  lists  and  deliver  to  the  collector  tax  lists  containing 
the  names  and  addresses  of  all  persons  so  assessed,  and  the  number 
of  polls  assessed  to  each  with  the  amount  of  the  respective  taxes 
thereon.  The  assessors  shall  also  deliver  to  the  collector  their  war- 
rants in  the  customary  form  for  the  collection  forthwith  of  all  taxes 
contained  in  said  lists;  but  no  such  list  or  warrant  shall  be  issued 
to  any  collector  until,  conformably  to  law,  he  has  given  bond  and 
has  otherwise  qualified  himself  for  the  performance  of  his  duties.  Poll 
taxes  so  committed  to  the  collector  shall  be  subject  to  the  laws  re- 
lating to  poll  taxes  committed  by  warrant  under  section  fifty-three 
of   chapter   fifty-nine. 

Section  5.  A  collector  of  taxes  receiving  from  the  assessors  a 
list  and  warrant  under  the  preceding  section  shall  forthwith  proceed 
to  collect  the  poll  taxes  from  the  persons  entered  on  such  list.  All 
laws  relating  to  the  collection  of  taxes,  to  the  duties  and  powers  of 
collectors,  to  money  collected  as  taxes,  interest,  charges  and  fees, 
to  the  accounting  for  and  turning  over  of  money  so  collected,  and  to 
the  crediting  thereof  to  the  collector,  shall  apply  to  the  collection 
of  poll  taxes  from  the  persons  whose  names  appear  on  such  lists. 

Collector's  Books,  Records,  Accounts  and  Vouchers 

Section  6.  The  collector  shall  make  and  keep  in  the  book  con- 
taining the  tax  list  committed  to  him,  against  the  name  of  every 
person  assessed  for  a  tax,  entries  showing  the  disposition  thereof, 
whether  re-assessed,  abated  or  paid,  and  the  date  of  such  disposition. 

Section  7.  He  shall  also  keep  a  cash  book,  in  which  he  shall 
enter  all  sums  paid  to  him,  as  received,  specifying  the  total  amount 
of  tax,  abatements  allowed,  all  interest  charged,  the  total  amount  re- 
ceived and  the  date  of  receipt,  the  date  and  amount  of  every  pay- 
ment and  disbursement  made  by  him,  and  to  whom  paid,  with  such 
other  matters  as  the  town  requires. 

Section  8.  All  books  kept  by  the  collector  shall  be  furnished 
by,  and  be  the  property  of,  the  town,  and  shall  be  at  all  reasonable 


Collection  of  Local  Taxes  325 

G.L.c.  60,  §§9-12  inc.] 

times  open  to  examination  by  the  auditor  of  such  town  or  any 
other  agent  thereof  duly  authorized  therefor.  The  collector  shall, 
on  demand  by  the  mayor,  aldermen  or  selectmen,  exhibit  to  them  or 
to  any  persons  whom  they  designate,  at  any  time  during  ordinary 
business  hours,  the  books,  accounts  and  vouchers  relating  to  taxes 
committed  to  him  for  collection  and  to  his  receipts  and  payments  on 
account  of  taxes;  and  they,  or  the  persons  designated  by  them,  shall 
have  full  opportunity  to  examine  said  books,  accounts  and  vouchers, 
and  to  make  copies  and  extracts  therefrom. 

Section  9.  A  collector,  within  three  months  after  his  resignation 
of,  or  retirement  or  removal  from,  the  office  of  collector,  shall  de- 
posit with  the  clerk  of  the  town  where  he  held  such  office  all  his 
accounts,  records  and  papers,  except  his  warrant,  which  relate  to 
the  assessment  and  collection  of  taxes  therein,  and,  when  all  the 
taxes  which  have  been  committed  to  him  have  been  collected  or  abated, 
or,  in  any  event,  at  the  end  of  three  years  from  the  date  of  their 
commitment  to  him,  he  shall  so  deposit  all  such  accounts,  records 
and  papers  and  his  warrant. 

Section  10.  The  executor  or  administrator  of  a  collector  or 
former  collector  shall,  within  three  months  after  his  appointment, 
deposit  all  accounts,  records,  papers  or  unsettled  tax  lists  coming 
into  his  possession,  relating  to  the  assessment  and  collection  of  taxes, 
with  the  clerk  of  the  town  to  which  they  pertain;  and  any  other 
person  into  whose  possession,  upon  the  death,  resignation,  retirement 
or  removal  from  office  of  a  collector  such  accounts,  records,  papers 
or  unsettled  tax  lists  may  come,  shall  forthwith  deposit  them  with 
the  clerk  of  such  town. 

Section  11.  If  the  collector  has  an  office  for  the  deposit  of 
records  and  the  transaction  of  his  official  business,  the  accounts,  rec- 
ords and  papers  otherwise  required  to  be  deposited  with  the  town 
clerk  shall  be  deposited  in  said  office. 

Section  12.  A  town  clerk,  or  collector,  having  knowledge  of  any 
accounts,  records  or  papers  relating  to  taxes  in  his  town  which  should 
be  in  his  custody,  shall  demand  them  of  any  person  having  them, 
who  shall  forthwith  deliver  them  to  him. 

The  penalties  for  violation  of  the  last  three  sections  are 
set  forth  in  another  portion  of  the  statutes.1 

1  G.  L.  c.  60,  §  §  100-102  inc.,  injra  page  412. 


326  Taxation   in   Massachusetts 

[G.L.c.  60,  §13 

Bond  of  Collector 

Section  13.  The  collector  shall  give  bond  to  the  town  for  the 
faithful  performance  of  his  duties,  in  a  sum  and  with  sureties  ap- 
proved by  the  selectmen  or  by  the  mayor  and  aldermen.  The  form 
of  the  bond  shall  be  approved  by  the  commissioner. 

The  statutes  elsewhere  provide  that  the  selectmen  shall  upon 
approval  of  the  collector's  bond  give  written  notice  thereof  to 
the  assessors;1  that  the  assessors  shall  not  commit  a  tax  list  to 
the  collector  until  his  bond  has  been  approved;2  and  that  unless 
the  collector  gives  bond  within  ten  days  after  his  election  or 
appointment  the  selectmen  may  declare  his  office  vacant  and 
appoint  another  in  his  place.3 

It  is  no  defence  to  an  action  on  a  collector's  bond  based  on 
a  shortage  in  his  accounts  that  the  shortage  was  due  to  theft 
of  money  from  the  collector  without  fault  on  his  part.4  In  such 
an  action  it  is  not  open  to  the  sureties  on  the  collector's  bond  to 
show  that  the  principal  was  not  lawfully  appointed  collector, 
at  least  when  the  action  is  based  on  failure  to  account  for  money 
actually  collected,  as  they  are  estopped  by  the  recitals  in  the 
bond;5  and  the  sureties  of  a  tax  collector  who  has  actually  col- 
lected the  taxes  cannot  set  up  informalities  in  the  tax  list  as 
an  excuse  for  his  not  turning  over  the  money  to  the  town.6 
Ordinarily  when  the  same  person  holds  the  office  for  several 
successive  years  and  gives  a  new  bond  each  year,  the  bonds  are 
substitutional  and  not  cumulative,  and  after  a  new  bond  has 
been  approved  after  a  new  election,  there  is  no  further  liability 
on  the  old  bond  for  subsequent  defaults.7  When  however  there 
has  been  a  shortage  for  several  successive  years  and  the  collector 
applies  money  collected  during  one  year  to  taxes  collected  by  him 
the  previous  year  and  not  turned  over  to  the  town,  the  sureties 
on  the  bond  for  the  later  year  are  liable  for  the  deficit  in  that  year 
thus  caused,  if  the  amount  so  paid  was  received  in  good  faith  by 

1  G.  L.  c.  41,  §  20,  supra  page  151. 

?  G.  L.  c.  59,  §  53,  supra  page  280. 

3  G.  L.  c.  41,  §  40,  supra   page  159. 

4  Hancock   v    Hazard,   12   Cush.   112    (1853). 

&  Great  Barrington  v.  Austin,  8  Gray  444  (1857);  Wendell  v.  Fleming,  8 
Gray  613  (1857). 

6  Sandwich  v.  Fish,  2  Gray  298  (1854). 

7  Newburyport  v.  Davis,  209  Mass.  126  (1911). 


Collection  of  Local  Taxes  327 

G.  L.  c.  60,  §  13] 

the  town.8  Negligence  of  the  town  officials  in  failing  to  dis- 
cover the  defalcations  of  the  collector  does  not  discharge  the 
sureties  on  his  bond.9  Failure  to  disclose  past  irregularities 
known  to  the  town  to  persons  about  to  become  sureties  would 
avoid  their  liability ; 10  but  this  ground  of  defense  does  not  extend  to  a 
case  in  which  the  information  is  no  more  than  indefinite  rumors  of ' 
misconduct  not  pertaining  to  financial  matters;11  and  the  send- 
ing of  the  annual  town  book  to  the  sureties  containing  the 
reports  of  the  auditor  and  the  treasurer,  the  false  statements 
in  which  led  the  sureties  to  take  no  action  against  the  collector, 
does  not  discharge  the  sureties.12  False  statements  made  by 
the  collector  himself  to  induce  persons  to  become  his  sureties 
do  not  affect  the  right  of  the  town  to  hold  the  sureties.13 

Payments  made  by  the  collector  on  negotiable  orders  drawn 
by  the  selectmen  on  the  town  cannot  be  credited  to  the  collector 
when  he  has  negotiated  the  same  orders  again;14  but  when  the 
treasurer  without  knowledge  of  the  sureties  allows  the  collector 
to  keep  money  collected  to  pay  his  own  debts,  it  may  operate 
to  discharge  the  sureties.15  A  material  alteration  in  the  bond 
without  the  consent  of  the  sureties  avoids  their  liability.16 

If  a  collector  voluntarily  gives  a  bond  to  the  town  to  secure 
his  faithful  discharge  of  the  duties  of  his  office  and  the  bond  is 
accepted,  it  is  a  valid  bond  without  any  further  evidence  of 
the  approval  by  the  selectmen  of  the  sum  or  the  sureties.17  If 
a  bond  fails  to  comply  with  the  provisions  of  the  statute  the 
sureties  may  nevertheless  be  liable  on  it  at  common  law.18 

When  a  collector  has  been  removed,  he  and  his  sureties  are 
liable  for  taxes  committed  to  him  which  he  failed  to  collect 
through  remissness,  although  his  successor  has  also  given  bond 

8  Cqlerain  v.  Bell.  9  Met.  499  (1845);  Sandwich  v.  Fish,  2  Gray  298  (1854); 
Egremon't  v.  Benjamin,  125  Mass.  15  (1878);  Hudson  v.  Miles,  185  Mass.  582 
(1904). 

9  Winthrop  v.  Soule,  175  Mass.  400  (1900) ;  Hudson  v.  Miles,  185  Mass.  582 
(1904);  Newburyport  v.  Davis,  209  Mass.  126  (1911). 

10  Hudson  v.  Miles,  185  Mass.  582  (1904). 

11  Hudson  v.  Miles,  185  Mass.  582  (1904). 

12  Winthrop  v.  Soule.  175  Mass.  400  (1900). 

13  Hudson  v.  Miles.  185  Mass.  582  (1904). 

14  Cheshire  v.  Howland,  13  Gray  321  (1859). 

15  Johnson  v.  Mills,  10  Cush.  503  (1852). 

16  Doane  v.  Eldridge,  16  Gray  254  (1860). 

17  Wendell  v.  Fleming,  8  Gray  613  (1857). 

18  Sweetser  v.  Hay,  2  Gray  49  (1854);  Hudson  v.  Miles,  185  Mass.  582 
(1904). 


328  Taxation   in    Massachusetts 

[G.  L.c.  60,  §§14,15 

obliging  him  to  collect  these  same  taxes.19  In  a  suit  upon  a  bond 
given  by  a  collector  of  taxes  it  is  sufficient  if  the  suit  be  author- 
ized by  the  town  treasurer;  the  authority  or  consent  of  the  town 
so  far  as  the  same  is  necessary  may  be  presumed.20 

The  aldermen  cannot  be  compelled  to  approve  the  bond  of 
a  collector  unless  the  sureties  are  satisfactory  to  them;  but 
they  cannot  refuse  to  approve  a  bond  on  the  ground  that  they 
do  not  recognize  the  person  presenting  it  as  collector  if  he  was 
in  fact  lawfully  elected  to  that  office.21 

Special  Collector 

Section  14.  In  towns,  not  cities,  if,  at  the  expiration  of  three 
years  from  the  date  of  the  commitment  of  tax  lists  and  warrant  to 
a  collector  of  taxes,  any  taxes  remain  uncollected  and  recovery  cannot 
be  made  upon  the  bond  of  the  collector  of  the  amount  of  such  uncol- 
lected taxes,  the  selectmen  shall  appoint  the  collector  of  taxes  for  the 
current  year  or  some  other  person  as  special  collector  thereof.  He 
shall  furnish  a  satisfactory  bond  for  the  faithful  performance  of  his 
duties,  in  such  sum  as  the  selectmen  require,  in  a  form  to  be  approved 
by  the  commissioner. 

Fees 

Section  15.  The  collector  shall,  unless  removed  from  office  or 
unless  his  tax  list  has  been  transferred  to  his  successor,  complete  the 
collection  of  the  taxes  committed  to  him,  notwithstanding  the  ex- 
piration of  his  term  of  office.  The  following  charges  and  fees,  and 
no  other,  when  accrued,  shall  severally  be  added  to  the  amount  of 
the  tax  and  collected  as  a  part  thereof: 

1.  For  an  arrest,  one  dollar  and  actual  traveling  expenses  incurred 
in  making  such  arrest; 

2.  For  a  summons,  twenty  cents; 

3.  For  the  written  demands  provided  for  by  law,  twenty-five 
cents ; 

4.  For  a  warrant  to  distrain  or  arrest,  fifty  cents; 

5.  For  preparing  advertisement  of  sale,  fifty  cents  for  each  parcel 
of  real  estate  included  in  the  advertisement; 

6.  For  advertisement  of  sale  in  newspapers,  the  cost  thereof; 

7.  For  posting  notices  of  sale,  fifty  cents  for  each  parcel  of  real 
estate  or  lot  of  goods  included  in  the  notice; 

19  Colerain  v.  Bell,  9  Met.  499  (1845). 

20  Blackstone  v.  Taft,  4  Gray  250  (1855). 

21  Keough  v.  Aldermen  of  Holyoke,   156   Mass.  403    (1902). 


Collection  of  Local  Taxes  329 

G.  L.  c.  60,  §  15] 

8.  For  distraining  goods,  one  dollar  and  the  cost  thereof ; 

9.  For  selling  goods  distrained,  the  cost  thereof; 

10.  For  affidavit,  twenty-five  cents  for  each  parcel  of  land  included 
therein ; 

11.  For  recording  affidavit,  fifty  cents  for  each  parcel  of  land 
..eluded  therein; 

12.  For  preparing  deed,  two  dollars; 

13.  For  each  hour's  time  actually  expended  in  selling  as  certified 
by  him  under  section  fifty-one,  thirty  cents; 

14.  For  service  of  demand  and  notice  under  section  fifty-three,  if 
served  in  the  manner  required  by  law  for  the  service  of  subpoenas 
on  witnesses  in  civil  cases,  fifty  cents  and  travel  as  allowed  by  chap- 
ter two  hundred  and  sixty-two. 

The  collector  shall  pay  over  to  the  town  treasurer,  or  account  to 
him  for,  all  charges  and  fees  collected  by  him  or  by  a  constable, 
sheriff  or  deputy  sheriff  under  his  direction;  but  the  town  shall 
reimburse  or  credit  him  for  all  expenses  incurred  by  him  hereunder, 
including  the  lawful  charges  and  fees  of  constables,  sheriffs  and 
deputy  sheriffs  paid  or  credited  by  him  for  collecting  taxes. 

Before  the  charges  and  fees  of  a  collector  were  fixed  by  stat- 
ute, it  was  held  that  he  was  entitled  to  the  same  fees  as  a  sheriff 
for  similar  services  in  collecting  executions.1  If  however  at  any 
intermediate  stage  in  the  proceedings  the  tax  is  paid  to  the  col- 
lector he  is  not  entitled  to  the  fees  for  the  steps  that  would 
have  been  necessary  to  complete  the  collection  of  the  tax  by 
process  of  law.2 

A  sale  for  non-payment  of  taxes  is  void  if  fees  in  excess  of 
those  allowed  by  law  are  charged;  if,  for  example,  the  sale  was 
advertised  in  two  newspapers  instead  of  one  newspaper  and  the 
expense  of  the  advertisement  added  to  the  amount  of  the  tax 
the  sale  would  be  invalid.3  So  also  the  inclusion  of  the  proper 
fee  for  the  performance  of  an  act  which  under  the  circumstances 
of  the  case  was  not  required  by  law  invalidates  the  sale.4 

Until  1918  it  was  a  subject  of  much  dispute  whether  the 
fees  established  by  this  section  belonged  to  the  city  or  town  or 
to  the  collector,  but  in  that  year  legislation  was  enacted  making 

1  Howard  v.  Proctor,  7  Gray  128  (1856). 

2  Converse  v.  Jennings,  13  Gray  77  (1859). 

3  Shurtleff  v.  Potter,  206  Mass.  286  (1910). 

4  Koch  v.  Austin,  225  Mass.  215  (1916). 


330  Taxation   in   Massachusetts 

[G.L.c.  60,  §16 
it  clear  that  the  fees  belonged  to  the  city  or  town  and  not  to 
the  collector.5  The  town  may  however  if  it  sees  fit  pay  the 
collector  on  a  fee  or  commission  basis. 

Demand 

Section  16.  The  collector  shall,  before  selling  the  land  of  a  res- 
ident, or  non-resident,  or  distraining  the  goods  of  any  person,  or 
arresting  him  for  his  tax,  serve  on  him  a  statement  of  the  amount 
thereof  with  a  demand  for  its  payment.  If  the  heirs  of  a  deceased 
person,  co-partners  or  two  or  more  persons  are  jointly  assessed,  service 
need  be  made  on  only  one  of  them.  Such  demand  for  the  tax  upon 
land  may  be  made  upon  the  person  occupying  the  same  on  April  first 
of  the  year  in  which  the  tax  is  assessed.  No  demand  need  be  made 
on  a  mortgagee,  unless  he  has  given  notice  under  section  thirty- 
eight,  in  which  case  no  demand  need  be  made  on  the  owner  or  occu- 
pant. Demand  shall  be  made  by  the  collector  by  mailing  the 
same  to  the  last  or  usual  place  of  business  or  abode,  or  to  the  address 
best  known  to  him,  and  failure  to  receive  the  same  shall  not  invalidate 
a  tax  or  any  proceeding  for  the  enforcement  or  collection  of  the  same. 

The  law  requires  as  the  foundation  for  an  arrest  for  non- 
payment of  taxes  or  for  the  distraint  of  personal  property  or 
the  sale  of  real  estate, 'a  demand  for  their  payment.  Formerly 
this  demand  had  to  be  on  the  taxpayer  in  person.  The  Revised 
Statutes  added  a  provision  that  it  could  be  made  at  the  place  of 
usual  abode,  and  under  this  provision  it  was  held  that  when  a 
non-resident  was  taxed  as  such  a  demand  at  his  last  place 
of  abode  in  the  place  where  the  tax  was  assessed  was  sufficient.1 
The  General  Statutes  added  the  qualification  "  if  to  be  found 
within  their  precincts."  The  statute  as  it  thus  stood  was  re- 
enacted  in  the  Public  Statutes  and  again  in  the  codification  of 
the  statutes  relating  to  the  collection  of  taxes  in  1888.  In  1889 
however  came  enactments  which  provided  that  demand  should 
be  made  by  causing  a  statement  of  the  amount  of  the  tax  with 
a  demand  for  its  payment  to  be  given  to  the  person  assessed, 
or  to  be  sent  to  him  postpaid  through  the  mail  directed  to  the 
city  or  town  where  he  resided  on  the  first  day  of  May  in  the  year 
in  which  the  tax  was  assessed.    Under  this  statute  it  was  held 

5  St.  1918,  c.  257,  §  45. 

i  King  v.  Whitcomb,  1  Met.  328  (1840). 


Collection  of  Local  Taxes  331 

G.L.c.  60,  §17] 

that  a  demand  sent  by  mail  to  a  person  assessed  addressed  to 
him  in  the  town  to  which  he  had  removed  after  the  first  day 
of  May  did  not  comply  with  either  alternative  and  was  invalid, 
although  actually  received  by  the  person  assessed.2  The  Re- 
vised Laws  and  the  later  codifications  provide  merely  that  the  col- 
lector shall  "serve  "  the  statement  and  demand,  and  "  service  " 
is  defined  in  the  section  on  definitions 3  in  such  a  way  as  to 
avoid  the  effect  of  the  aforementioned  decision. 

In  1918  the  obligation  to  make  a  demand  was  extended  to 
the  case  of  non-resident  owners  of  real  estate  as  a  consequence 
of  a  decision  that  a  sale  for  non-payment  of  a  tax  which  included 
a  fee  for  demand  on  a  non-resident  was  invalid,4  it  being  thought 
that  it  was  often  impossible  for  the  collector  to  know  whether 
the  person  assessed  was  a  resident  or  not,  and  at  the  same  time 
it  was  provided  that  failure  of  the  person  assessed  to  receive 
the  demand  should  not  invalidate  the  proceedings.5 

If  a  demand  for  payment  of  a  tax  assessed  upon  two  persons 
jointly  is  made  upon  both  of  them,  it  may  properly  be  made 
upon  the  persons  assessed  upon  different  days.6  A  demand 
made  upon  a  person  after  his  decease,  and  after  his  death  has 
appeared  on  the  records  of  the  probate  court  is  invalid.7  When 
land  has  been  properly  assessed  to  "  the  heirs  "  of  a  person  de- 
ceased, if  the  probate  records  show  who  such  heirs  severally 
were,  it  is  the  duty  of  the  collector  to  find  at  least  one  of  such 
heirs,  make  a  demand  upon  him  and  designate  him  by  name 
in  the  tax  deed  if  the  tax  is  not  paid.8  If  a  fee  for  a  demand  is 
added  to  the  tax  when  no  demand  was  required  by  law,  a  sale 
which  includes  such  fee  is  invalid.9 

Time  of  Making  Levy 

Section  17.  If  taxes  remain  unpaid  for  fourteen  days  after 
demand  therefor,  the  collector  shall,  within  two  years  after  October 

2  Hunt  v.  Holston,  185  Mass.  137  (1904). 

3  G.  L.  c.  60,  §  1,  supra  page  319. 

4  Koch  v.  Austin,  225  Mass.  215  (1916). 
«  St.  1918,  c.  57. 

6  Howard  v.  Proctor,  7  Gray  128  (1856). 

7  Fuller  v.  Fuller,  228  Mass.  441   (1917)'. 
«  Conners  v.  Lowell,  209  Mass.  Ill  (1911). 
9  Koch  v.  Austin,  225  Mass.  215  (1916). 


332  Taxation   in    Massachusetts 

[G.  L.  c.  60,  §§  18-21  inc. 
first  in  the  year  of  the  assessment,  levy  the  tax,  together  with  all 

incidental  charges  and  fees,  in  the  manner  provided  by  law. 

Summons 

Section  18.  The  collector  may,  before  making  a  demand  for 
the  payment  of  a  tax  due  from  any  person,  serve  a  summons  on  him, 
stating  therein  the  amount  due  and  that  unless  the  same,  with  twenty 
cents  more  for  the  summons,  is  paid  within  ten  days,  he  will  proceed 
to  collect  it  according  to  law. 

The  summons  was  not  authorized  by  general  legislation  until 
1888,1  although  under  certain  city  charters  it  had  previously 
been  the  practice  to  issue  summonses  under  conditions  similar 
to  those  now  established  by  general  law.2 

Levy  without  Demand 

Section  19.  If  the  assessors  are  of  opinion  that  the  credit  of 
a  person  taxed  is  doubtful  or  that  he  is  about  to  leave  the  common- 
wealth, they  may,  by  a  special  warrant,  direct  the  collector  forthwith, 
without  demand  or  notice,  to  compel  payment  by  distress  or  imprison- 
ment, whether  the  tax  is  payable  immediately  or  at  a  future  day, 
by  instalments  or  otherwise. 

Obligation  to  Exhibit  Certificate  of  Abatement 

Section  20.  If  a  person  claims  the  benefit  of  an  abatement,  he 
shall  exhibit  to  the  collector  demanding  his  taxes  the  certificate  of 
such  abatement  authorized  by  section  seventy  of  chapter  fifty-nine; 
and  he  shall  be  liable  for  all  costs  and  officer's  fees  incurred  before 
exhibiting  such  certificate. 

Effect  of  Misnomer 

Section  21.  If,  in  the  assessors'  lists  or  in  their  warrant  and 
list  committed  to  the  collector,  there  is  an  error  in  the  name  of  a 
person  taxed,  the  tax  assessed  to  him  may  be  collected  of  the  person 
intended  to  be  assessed,  if  he  is  taxable  and  can  be  identified  by  the 
assessors. 

1  St.  1888,  c.  390,  §  28. 

2  Cheever  v.  Merritt,  5  Allen  563  (1863). 


Collection  of  Local  Taxes  333 

G.  L.  c.  60,  §  22] 

This  statute  was  particularly  intended  to  facilitate  the  col- 
lection of  a  tax  from  a  person  who  ought  to  have  been  assessed, 
where  there  is  no  party  affected  except  the  one  who  was  required 
to  pay  the  tax;1  but  it  has  been  successfully  invoked  in  a  liti- 
gation involving  the  validity  of  a  tax  sale,2  and  there  is  no  doubt 
that  it  is  applicable  to  such  cases  though  subject  perhaps  to 
a  less  liberal  construction  than  in  direct  proceedings  to  collect 
a  tax. 

The  statute  applies  to  any  case  of  insufficient  or  incorrect 
statement  of  the  name;3  but  it  must  appear  that  the  person 
from  whom  it  is  sought  to  collect  the  tax  is  the  person  intended 
and  is  taxable.4  The  truth  of  these  matters  can  be  proved  by 
parole  evidence.5 

Partial  Payment  of  Tax 

Section  22.  After  the  delivery  of  a  tax,  including  assessments 
for  betterments  or  other  purposes  but  not  including  a  poll  tax,  to  a 
collector  for  collection,  the  owner  of  the  estate  or  person  assessed  or 
a  person  in  behalf  of  said  owner  or  person  may,  if  the  tax  or  assess- 
ments are  upon  real  estate,  at  any  time  up  to  the  date  when  adver- 
tisements may  be  prepared  for  the  sale  of  the  same,  and  if  it  is  a  per- 
sonal tax,  at  any  time  up  to  the  date  when  a  warrant  or  other 
process  may  be  issued  for  the  enforcement  and  collection  thereof, 
tender  to  the  collector  not  less  than  twenty-five  per  cent  of  the  tax, 
which  shall  be  received,  receipted  for  and  applied  toward  the  pay- 
ment of  the  tax.  The  acceptance  of  any  partial  payment  in  accordance 
with  this  section  shall  not  invalidate  any  demand  made  for  a  tax, 
prior  to  the  acceptance  of  such  partial  payment;  provided  that  the 
amount  stated  in  the  demand  was  the  amount  due  at  the  date  when 
the  demand  was  made.  If  in  any  court  it  shall  be  determined  that 
the  tax  is  more  than  the  amount  so  paid,  judgment  shall  be  entered 

1  Sargent  v.  Bean,  7  Gray  125  (1856). 

2  Westhampton  v.  Searle,  127  Mass.  502  (1879). 

3  Thus  the  statute  has  been  held  applicable  when  the  owner  was  assessed 
by  his  last  name  only,  Tyler  v.  Hardwick,  6  Met.  470  (1843) ;  when  an  assess- 
ment was  to  the  treasurer  of  a  corporation  instead  of  to  the  corporation, 
Trustees  of  Greene  Foundation  v.  Boston,  12  Cush.  54  (1853);  when  an  assess- 
ment was  to  the  owner  by  name  "and  Son"  and  the  son  had  no  interest  in  the 
property,  Westhampton  v.  Searle,  127  Mass.  302  (1879) ;  when  the  names  of 
the  owners  of  two  adjoining  lots  were  transposed,  Hurd  v.  Melrose,  191  Mass. 
576  (1906). 

*  Sargent  v.  Bean,  7  Gray  125  (1856);  Wood  v.  Torrey,  97  Mass.  321  (1867). 
6  Westhampton  v.  Searle,  127  Mass.  502   (1879). 


334  Taxation   in   Massachusetts 

[G.  L.  c.  60,  §  23 
for  such  excess  and  interest  upon  the  amount  thereof  to  the  date  of 
the  judgment,  and  on  the  amount  paid  to  the  date  of  payment,  with 
costs  if  otherwise  recoverable.  The  part  payment  authorized  by 
this  section  shall  not  affect  a  right  of  tender,  lien  or  other  provision 
of  law  for  the  recovery  of  the  amount  of  such  tax,  or  interest  or  costs 
thereon,  remaining  due,  but  if  the  part  payment  is  more  than  the  tax, 
as  finally  determined,  the  excess,  without  interest,  shall  be  repaid 
to  the  person  who  paid  it. 

Prior  to  1899  a  collector  had  no  authority,  except  in  certain 
instances,  to  receive  less  than  the  full  amount  of  a  tax,  although 
he  might  consider  it  advantageous  for  all  parties  that  the  person 
assessed  pay  in  instalments  or  there  was  a  dispute  as  to  the 
amount  only  and  it  was  admitted  that  something  was  due. 

Statement  of  Existing  Liens 

Section  23.  The  collector  of  taxes  for  any  city,  or  for  any  town 
having  more  than  five  thousand  inhabitants  as  determined  by  the 
last  preceding  national  or  state  census,  shall,  on  written  application 
by  any  person,  and  within  two  days  thereafter,  furnish  to  any  such 
applicant  a  written  statement  of  all  taxes  and  other  assessments 
which  at  the  time  constitute  liens  on  the  parcel  of  real  estate  speci- 
fied in  such  application  and  are  payable  on  account  of  such  real  estate. 
Such  statement  shall  be  itemized  and  shall  show  the  amounts  then 
payable  on  account  of  all  such  taxes  and  assessments  so  far  as  such 
amounts  are  fixed  and  ascertained,  and  if  the  same  are  not  then 
ascertainable,  it  shall  so  be  expressed  in  the  statement.  Any  town 
officer  or  board  doing  any  act  towards  establishing  any  such  tax, 
assessment,  lien  or  charge  upon  any  real  estate  in  the  town  shall 
transmit  a  notice  of  such  act  to  its  collector.  Such  collector  shall 
charge  one  dollar  for  each  statement  so  issued,  and  the  money  so 
received  shall  be  paid  into  the  town  treasury. 

This  provision  is  extremely  useful  to  persons  about  to  pur- 
chase land,  as  it  gives  them  an  official  statement  of  the  existing 
liens  upon  it;  but  not  too  much  reliance  should  be  placed  by 
prospective  purchasers  or  their  attorneys  upon  such  statements 
unless  the  collector  and  his  clerks  are  known  to  be  accurate  and 
reliable.  The  collector  is  a  public  officer  and  if  he  accidentally 
omits  an  existing  lien  from  the  statement  so  that  the  purchaser 


Collection  of  Local  Taxes  335 

G.  L.  c.  60,  §24] 

is  eventually  obliged  to  discharge  it,  the  purchaser  cannot  hold 
the  municipality  liable  for  the  collector's  negligence x  nor  can 
he  escape  payment  on  the  ground  that  the  city  is  estopped  from 
enforcing  the  lien.2  He  cannot  even  recover  damages  from  the 
collector  personally  unless  that  official  was  himself  negligent.3 

COLLECTION  BY  DISTRESS 

Seizure  of  Personal  Property.  —  Exemptions 

Section  24.  If  a  person  refuses  or  neglects  to  pay  his  tax  for 
fourteen  days  after  demand,  the  collector  shall  without  unnecessary 
delay  levy  the  same  by  distress  or  seizure  and  sale  of  his  goods, 
except  tools  or  implements  necessary  for  his  trade  or  occupation, 
beasts  of  the  plough  necessary  for  the  cultivation  of  his  improved  land, 
military  arms,  uniforms  and  equipments,  utensils  for  housekeeping 
necessary  for  upholding  life,  and  bedding  and  apparel  necessary  for 
himself  and  family. 

Distress  is  defined  by  Bouvier  as  the  taking  of  a  personal 
chattel  out  of  the  possesion  of  a  wrongdoer  into  the  custody  of 
the  party  injured  to  procure  satisfaction  for  the  wrong  done. 
It  was  resorted  to  in  advance  of  judicial  proceedings  and  in  Mass- 
achusetts it  has  been  superseded  by  attachment  on  mesne  process 
except  in  the  case  of  beasts  at  large  doing  damage,  debts  due 
the  commonwealth,  and  taxes.  As  has  been  previously  stated, 
distress  was  the  original  and  primary  method  to  enforce  the 
collection  of  taxes.  In  a  farming  community  the  simplest  and 
most  obvious  thing  to  do,  if  a  resident  failed  to  pay  his  taxes, 
was  to  seize  and  sell  his  cattle ;  but  in  the  more  complicated  con- 
ditions of  city  life  distress  of  goods  is  not  so  available  and  con- 
venient a  remedy. 

It  should  be  remembered  that  there  is  no  lien  for  taxes  on 
personal  property 1  and  that  distress  is  not  the  enforcement  of 
a  lien.  The  property  seized  must  be,  except  as  hereinafter  stated, 
the  property  of  the  person  taxed  when  it  is  seized;2  and  it 

1  Dunbar  v.  Boston,  112  Mass.  75  (1873);  Alger  v.  Easton,  119  Mass.  77 
(1875). 

2  Rossire  v.  Boston,  4  Allen  57   (1862). 
3-Moynihan  v.  Todd,   188   Mass.   301    (1905). 

i  Fuller  v.  Day,  103  Mass.  481  (1870) ;  McGee  v.  Salem,  149  Mass.  238  (1889). 
2  Fuller  v.  Day,  103  Mass.  481  (1870). 


336  Taxation   in    Massachusetts 

[G.  L.  c.  60,  §§  25,  26 

need  not  have  been  the  property  on  account  of  which  the  tax 
was  assessed. 

If  a  person  dies  without  paying  his  tax,  his  goods  cannot  be 
subsequently  seized  on  distress,  but  the  collector  must  employ 
the  other  methods  of  collection  established  by  law  for  such  cases.3 
Formerly  provision  was  made  for  distress  of  stock  in  corporations ; 
but  it  has  been  held  that  the  adoption  of  the  uniform  stock 
transfer  act  repealed  the  statutory  authority  for  distress.4 
Whether  securities  negotiable  by  delivery,  such  as  coupon  bonds, 
can  be  taken  on  distress  is  open  to  some  doubt,  though  there 
are  precedents  for  such  action.5 

Upon  a  distress  of  goods  or  arrest  of  the  person  it  is  the  duty 
of  the  collector  to  make  an  official  return  and  if  properly  made 
it  is  prima  facie  evidence  of  the  facts  stated  therein.6  If  it  is 
impeached  by  evidence  of  facts  which  would  equally  well  justify 
the  collector,  the  variance  is  immaterial.7 

Detention,  Notice  and  Sale 

Section  25.  The  collector  shall  keep  the  goods  distrained,  at 
the  expense  of  the  owner,  for  four  days  at  least,  and  shall,  within 
seven  days  after  the  seizure,  sell  them  by  public  auction  for  pay- 
ment of  the  tax  and  charges  of  keeping  and  sale,  first  posting  notice 
of  the  sale  in  some  public  place  in  the  town  at  least  forty-eight  hours 
prior  thereto. 

Section  26.  The  collector  may  once  adjourn  such  sale  for  not 
more  than  three  days,  and  he  shall  forthwith  post  a  notice  of  such 
adjournment  at  the  place  of  sale. 

If  the  collector  holds  two  tax  warrants  each  of  them  including 
an  unpaid  assessment  upon  one  individual,  the  collector  may 
make  one  sale  for  the  whole  amount  due  under  both.1  If  the 
collector  buys  the  goods  distrained  himself,  the  owner  may 
avoid  the  sale.2 

The  notice  of  sale  may  be  given  either  before  or  after  the  four 

3  Wilson  v.  Shearer,  9  Met.  504   (1845). 

4  Warr  v.  Collector  of  Taunton,  234  Mass.  279  (1920). 

6  Sears  v.  Nahant,  221  Mass.  435  (1915). 

0  Barnard  v.  Graves.  13  Met,  85  (1847). 

7  Barnard  v.  Graves,  13  Met.  85  (1847). 

1  Howard  v.  Proctor,  7  Gray  128  (1856). 

2  Pierce  v.  Benjamin,   14  Pick.   356    (1833). 


Collection  of  Local  Taxes  337 

G.L.c.  60,  §26] 

days  have  expired,3  and  it  need  not  state  the  name  of  the  person 
taxed  or  the  amount  of  the  tax.4  A  general  description  of  the 
property  to  be  sold  and  of  the  place  where  the  sale  is  to  take 
place  is  sufficient.5  If  the  collector  does  not  hold  the  sale  within 
the  prescribed  seven  days  the  proceedings  are  void  ab  initio;0 
but  if  he  actually  sells  the  goods  within  the  prescribed  period 
the  sale  is  valid  although  his  warrant  did  not  limit  the  time  in 
which  he  was  to  make  the  sale.7  When  the  collector  distrains 
several  chattels  and  sells  them  separately  it  is  his  duty  to  stop 
the  sale  as  soon  as  enough  has  been  realized  to  pay  the  tax  and 
charges  and  to  return  the  remaining  goods  to  the  owner.8  If 
goods  distrained  are  sold  in  an  unlawful  manner  and  the  collector 
fails  to  realize  the  full  amount  of  the  tax,  payment  of  the  balance 
by  the  owner  and  acceptance  of  a  receipt  for  the  whole  tax  is 
not  a  waiver  of  his  right  of  action  against  the  collector  for  the 
unlawful  sale.9 

When  the  assessment  of  a  tax  is  wholly  void,  or  the  pro- 
ceedings for  its  collection  are  not  conducted  in  accordance  with 
law,  and  the  person  assessed  refuses  to  pay  the  tax  and  allows 
his  property  to  be  sold  by  the  collector,  and  the  purchaser 
takes  possession  of  the  property,  the  person  assessed  may  recover 
back  the  property  from  the  purchaser  by  writ  of  replevin,10  or 
he  may  maintain  an  action  of  tort  against  the  purchaser,  in 
the  nature  of  trover  for  conversion  of  his  personal  property.     ' 

If  however  there  is  no  actual  interference  with  the  owner's 
possession,  an  invalid  sale  of  his  property  for  non-payment  of 
taxes  inflicts  no  injury  upon  him  and  he  consequently  has  no 
redress  at  law.11 

3  Barnard  v.  Graves,  13  Met.  85  (1847). 

4  Barnard  v.  Graves,  13  Met.  85  (1847). 

5  In  Barnard  v.  Graves,  13  Met.  85  (1847),  a  description  of  the  property 
distrained  as  "one  valuable  horse"  was  held  sufficient;  and  in  Rawson  v.  Spencer, 
113  Mass.  40  (1873)  a  description  of  the  property  as  "about  18,907  feet  of  oak 
and  walnut  lumber"  was  held  sufficient. 

6  Pierce  v.  Benjamin,  14  Pick.  356  (1833);  Noyes  v.  Haverhill,  11  Cush. 
338  (1853). 

7  King  v.  Whitcomb,   1   Met.  328   (1840). 

8  Cone  v.  Forest,  126  Mass.  97  (1879). 

9  Pierce  v.  Benjamin,   14  Pick.  356   (1833). 

10  Fuller  v.  Day,  103  Mass.  481    (1870);   McGee  v.  Salem,  149  Mass.  238 
(1889). 

11  Noyes  v.  Haverhill,  11  Cush.  338  (1853). 


338  Taxation   in    Massachusetts 

[G.  L.  c.  60,  §§  27-29  inc 

Distress  of  Stock  or  Produce  to  Collect  Tax  on  Land 

Section  27.  If  a  person  is  taxed  for  land  in  his  occupation,  but 
of  which  he  is  not  the  owner,  the  collector,  after  demand  for  payment, 
may  levy  the  tax  by  distress  and  sale  of  the  cattle,  sheep,  horses,  swine 
or  other  stock  or  produce  of  such  estate,  belonging  to  the  owner  thereof, 
which,  within  nine  months  after  such  assessment  has  been  committed 
to  him,  may  be  found  upon  the  premises,  in  the  same  manner  as  if 
such  stock  or  produce  were  the  property  of  the  person  so  taxed;  but 
such  demand  for  payment  need  not  be  made  if  the  person  on  whom 
the  tax  is  assessed  resided  within  the  precinct  of  the  collector  at  the 
time  of  the  assessment,  and  subsequently  removes  therefrom  and  re- 
mains absent  three  months. 

Return  of  Surplus  to  Owner 

Section  28.  The  collector  shall  upon  demand  give  a  written 
account  of  every  sale  on  distress  or  seizure  and  charges,  and  pay  to 
the  owner  any  surplus  above  the  taxes,  interest  and  charges  of  keeping 
and  sale. 


COLLECTION  BY  ARREST  AND   IMPRISONMENT 
When  Arrest  is  Authorized 

Section  29.  If  a  person  refuses  or  neglects  to  pay  his  tax  for 
fourteen  days  after  demand  and  the  collector  cannot  find  sufficient 
goods  on  which  it  may  be  levied,  he  may  take  the  body  of  such  person 
and  commit  him  to  jail  until  he  pays  the  tax  and  charges  of  com- 
mitment and  imprisonment,  or  is  discharged  according  to  law;  but 
a  person  committed  for  non-payment  of  a  poll  tax  shall  not  be  de- 
tained in  jail  more  than  seven  days. 

Arrest  was  one  of  the  earliest  methods  adopted  in  Massa- 
chusetts of  enforcing  the  payment  of  taxes  and  is  still  in  fre- 
quent use.  The  statutory  provision  authorizing  arrest  and  com- 
mitment to  jail  has  been  little  modified  in  recent  years  except 
that  the  limitation  in  favor  of  persons  committed  for  non-pay- 
ment of  a  poll  tax  was  added  in  1893. 

Arrest  is  not  the  primary  method  of  enforcing  payment  and 
can  be  resorted  to  only  after  the  collector  upon  reasonable  search 


Collection  of  Local  Taxes  339 

G.L.c.  60,  §30,31] 

has  failed  to  find  sufficient  goods  to  levy  upon;1  but  if  he  asks 
the  delinquent  to  show  the  goods  and  the  latter  fails  to  do  so 
the  collector  has  made  sufficient  search  to  satisfy  the  statute.2 
If  the  delinquent  shows  sufficient  goods  he  cannot  be  arrested 
although  more  than  fourteen  days  have  elapsed  since  the  de- 
mand.3 

In  an  action  against  a  collector  for  unlawful  arrest  his 
return  is  prima  facie  but  not  conclusive  evidence  in  his  favor.4 
In  such  an  action  evidence  of  the  plaintiff's  manner  of  life  in 
jail  is  admissible  in  his  favor  on  the  question  of  damages  if  it 
is  not  contended  that  he  was  treated  with  unusual  severity;5 
and  evidence  that  he  was  confined  in  the  only  place  of  detention 
in  the  town  is  admissible  in  favor  of  the  collector.6 

Notwithstanding  the  hardship,  the  words  of  the  statute  are 
too  plain  to  allow  the  court  to  discover  an  exception  in  favor  of 
non-residents,  and  they  are  equally  with  residents  subject  to 
arrest.7  The  abolition  of  imprisonment  for  debt  did  not  affect 
imprisonment  for  non-payment  of  taxes.8 

Certificate  of  Arrest.  —  Discharge 

Section  30.  A  collector  who  commits  a  person  to  jail  shall  give 
to  the  keeper  thereof  a  certificate  signed  by  him,  stating  that  he  has 
committed  the  person  for  non-payment  of  his  tax  for  fourteen  days 
after  demand  therefor,  and  for  want  of  goods  and  chattels  whereof 
to  make  distress,  and  setting  forth  the  amount  said  person  shall  pay 
for  said  tax,  interest,  charges  and  fees. 

Section  31.  On  request  of  a  person  committed  to  jail  for  non- 
payment of  a  tax,  the  jailer  shall  forthwith  inform  the  court  having 
authority  to  examine  poor  debtors  that  the  debtor  desires  to  take 
the  oath  for  the  relief  of  poor  debtors.    The  court  shall  thereupon  ap- 

i  Lothrop  v.  Ide,  13  Gray  93  (1859);  Hall  v.  Hall,  3  Allen  5,(1861). 

2  Kerr  v.  Atwood,  188  Mass.  506   (1905). 

3  Lothrop  v.  Ide,   13  Gray  93   (1859). 

*  Lothrop  v.  Ide,  13  Gray  93  (1859) ;  Kerr  v.  Atwood,  188  Mass.  506  (1905). 
In  Snow  v.  Clark,  9  Gray  190  (1857),  the  officer's  return  stated  that  he  made 
diligent  search  for  goods  to  levy  on,  and  arrested  the  plaintiff.  It  was  held 
sufficient  as  it  was  obvious  from  the  return  taken  as  a  whole  that  the  officer 
failed  to  find  the  goods. 

5  Hall  v.  Hall,  3  Allen  5   (1861). 

6  Kerr  v.  Atwood,  188  Mass.  506  (1905). 

7  Snow  v.  Clark,  9  Gray  190  (1857). 

8  Appleton  v.  Hopkins,  5  Gray  530  (1855). 


340  Taxation   in    Massachusetts 

[G.  L.  c.  60,  §§  32-34  inc. 
point  a  time  and  place  for  the  examination  of  the  debtor,  and  shall 
direct  the  jailer  to  cause  the  debtor  to  be  present  at  the  examination. 
The  notice  required  by  section  twenty-three  of  chapter  two  hundred 
and  twenty-four  to  be  given  to  the  creditor  may  be  given  to  any  one  of 
the  assessors  or  to  the  collector  of  the  town  where  the  tax  was  assessed, 
any  of  whom  may  appear  at  the  examination  and  do  all  things  which 
a  creditor  might  do  upon  an  arrest  or  execution.  If  a  debtor  is  unable 
to  pay  such  tax,  he  may  be  discharged  in  the  same  manner  as  if 
committed  upon  an  execution. 

Section  32.  The  collector  shall  be  liable  for  the  tax  and  the 
charges  of  imprisonment  of  a  person  discharged,  unless  he  arrested 
and  committed  such  person  within  one  year  after  the  tax  was  committed 
to  him  for  collection,  or  unless  he  shall  be  exonerated  therefrom  by 
the  town  to  which  the  tax  is  due. 

The  "  charges  of  imprisonment  "  for  which  the  collector  may 
be  liable  if  the  person  assessed  is  discharged  from  jail  do  not 
include  the  support  of  the  prisoner  while  in  custody.1 

Collector  may  Require  Aid 

Section  33.  A  collector  who  is  resisted  or  impeded  in  the  ex- 
ercise of  the  duties  of  his  office  may  require  any  suitable  person  to 
aid  him. 

Warrant  to  Officer.  —  Release  and  Re-arrest 

Section  34.  If  a  tax  assessed  upon  a  person  remains  unpaid 
for  fourteen  days  after  demand  therefor,  the  collector  may  issue  his 
warrant  to  the  sheriffs  of  the  several  counties,  or  their  deputies,  or 
to  any  constable  or  deputy  collector  of  taxes,  directing  them  and 
each  of  them  to  distrain  the  property  or  take  the  body  of  the  person 
assessed  and  to  proceed  as  required  of  collectors  in  like  cases;  but  a 
collector  of-  taxes  who  issues  a  warrant  for  the  arrest  of  a  person  for 
non-payment  of  taxes,  or  the  officer  to  whom  he  commits  the  warrant, 
may  at  his  discretion,  after  the  service  of  the  warrant,  allow  such 
person  to  go  free  for  a  period  not  exceeding  fourteen  days  after  said 
service,  at  which  time,  if  said  person  does  not  pay  his  tax  with  all 
fees  and  charges  due  thereon,  including  one  dollar  for  service  of  said 
warrant  and  five  cents  for  each  mile  traveled  by  said  officer  in  the 

1  Townsend  v.  Wallcutt,  3  Met.  152   (1841). 


Collection  of  Local  Taxes  341 

G.L.c.  60,  §34] 
performance  of  said  collection,  said  officer  shall  then  arrest  the  said 

person  on  the  aforesaid  warrant,  and  commit  him  to  the  jail  of  the 

county  where  he  makes  the  arrest.    The  warrant  shall  run  throughout 

the  commonwealth,  and  any  officer  to  whom  it  is  directed  may  serve 

it  and  apprehend  the  person  in  any  county.    A  warrant  issued  under 

this  section  may  be  signed  by  the  collector  or  his  deputy;  and,  if  the 

warrant  is  sealed  by  an  impression  seal,  a  facsimile  of  the  signature 

of  the  collector  shall  have  the  same  validity  as  his  written  signature. 

This  statute  should  be  carefully  distinguished  from  section 
ninety  of  the  same  chapter.1  The  latter  section  provides  that 
when  the  same  person  is  serving  as  treasurer  and  collector  he 
can  issue  a  warrant  to  a  sheriff  or  constable  requiring  him  to 
collect  any  or  all  taxes,  thus  in  a  general  way  transferring  to 
such  officer  all  the  active  duties  of  a  collector;  the  section  now 
under  consideration  relates  to  a  tax  on  a  specified  individual 
which  has  remained  unpaid  for  fourteen  days  after  demand  and 
until  1888  applied  only  to  a  person  assessed  who  had  removed 
from  the  town  without  paying  the  tax.  It  is  to  be  noted  that 
under  this  section  a  collector  can  delegate  to  officers  of  purely 
local  authority  in  other  matters  the  power  to  make  distress  or 
arrest  anywhere  within  the  commonwealth,  a  power  which  it  is 
doubtful  that  he  may  himself  exercise.2 

When  a  collector  issues  a  warrant  under  this  section  it 
should  contain  recitals  justifying  its  issuance,  for  such  recitals 
would  furnish  the  officer  with  conclusive  evidence  for  his  pro- 
tection in  acting  under  it.3  But  recitals  are  not  necessary  for 
the  validity  of  the  warrant,  and  the  officer  is  protected  if  he  can 
prove  the  facts  necessary  to  constitute  his  authority  when  his 
proceedings  are  called  into  question.4  If  the  warrant  does  not 
contain  the  necessary  recitals,  the  officer  is  justified  in  refusing 
to  serve  it  although  the  circumstances  in  fact  made  its  issuance 
lawful;5  but  if  he  actually  collects  money  by  virtue  of  the 
warrant  the  absence  of  recitals  in  the  warrant  is  no  excuse  for 
failing  to  turn  the  money  over  to  the  collector.6 

1  See  infra  page  393. 

2  Beard  v.  Seavey,  191  Mass.  503  (1906). 

3  Williamstown  v.  Willis,  15  Gray  427  (1860);  Cheever  v.  Merritt,  5 
Allen  563   (1863). 

4  Cheever  v.  Merritt,  5  Allen  563  (1863);  Sherman  v.  Torrey,  99  Mass. 
472   (1868). 

5  Williamstown  v.  Willis,  15  Gray  427  (1860). 

6  Williamstown  v.  Willis,  15  Gray  427  (1860). 


342  Taxation   in   Massachusetts 

[G.L.c.  60,  §35 
The  clause  of  this  section  which  permits  an  officer  to  allow 
a  delinquent  to  remain  at  liberty  for  fourteen  days  after  the 
service  of  the  warrant  was  first  inserted  in  1908;  until  then  the 
officer  had  no  option  but  to  make  the  arrest  even  if  he  thereby 
prevented  the  person  assessed  from  getting  together  the  nec- 
essary funds  to  pay  the  tax.  This  provision  unlike  the  rest  of 
the  section  applies  to  action  by  the  collector  himself. 

COLLECTION  BY  SUIT 
Action  by  the  Collector 

Section  35.  If  a  tax  remains  unpaid  for  three  months  after 
commitment  to  the  collector,  he  may  maintain  an  action  in  his  own 
name  against  the  person  assessed  therefor  in  the  same  manner  as  for 
his  own  debt. 

The  first  provision  authorizing  a  collector  to  maintain  an 
action  at  law  to  recover  a  tax  appeared  in  the  statutes  in  1785 
and  applied  only  when  a  person  duly  assessed  died  or  removed 
from  the  town  or,  being  an  unmarried  woman,  married,  without 
paying  the  tax.  In  1859  neglect  to  pay  the  tax  for  one  year 
was  added  to  the  other  conditions  which  justified  an  action  at 
law.  In  1888  the  period  was  reduced  to  three  months  and  the 
provision  as  to  removal  was  dropped.  In  1889  all  conditions 
except  the  non-payment  of  the  tax  for  three  months  were  omit- 
ted and  the  statute  was  extended  to  include  re-assessments. 
In  the  Revised  Laws  the  statute  was  put  into  the  concise  word- 
ing in  which  it  stands  at  present  without  any  apparent  change 
in  its  meaning. 

No  right  of  action  for  the  collection  of  a  tax  exists  at  common 
law ;  and  no  action  can  be  maintained  except  upon  the  conditions 
prescribed  by  the  statute.1  No  cause  of  action  arises  in  favor 
of  the  collector  until  three  months  have  expired,2  and  conse- 
quently the  action  is  not  barred  by  limitations  until  six  years 
and  three  months  have  elapsed  from  the  time  the  tax  was  com- 
mitted to  him.3 

The  "  action  "  which  the  statute  provides  may  be  maintained 

1  Crapo  v.  Stetson,  8  Met.  106  (1844);  Harrington  v.  Glidden,  179  Mass. 
486  (1901). 

2  Ricker  v.  Brooks,  155  Mass.  400  (1892). 

3  Harrington  v.  Glidden,   179  Mass.  486   (1901). 


Collection  of  Local  Taxes  343 

G.  L.  c.  60,  §  35] 

by  the  collector  is  not  restricted  to  the  ordinary  forms  of  actions 
at  law,  but  the  word  is  used  in  its  comprehensive  sense  as  mean- 
ing the  pursuit  of  a  right  in  a  court  of  justice  without  regard  to 
the  form  of  legal  proceedings,  and  consequently  includes  a  bill 
in  equity  or  other  process  provided  the  person  assessed  can  be 
properly  made  a  party  defendant.4  Until  1889  the  statute 
specifically  provided  for  an  action  of  contract  and  for  trustee 
process,  only.  In  1889  it  was  enacted  that  the  collector  might 
"  sue  or  otherwise  proceed  in  court "  and  it  is  not  to  be  supposed 
that  the  present  statute  was  intended  to  diminish  his  rights 
and  powers. 

It  is  well  settled  that  a  tax  upon  real  estate  may  be  collected 
by  suit,  as  well  as  one  upon  personal  property,  although  occasions 
do  not  often  arise  when  it  is  desirable  to  resort  to  this  remedy 
to  collect  a  tax  upon  real  estate,  as  the  sale  of  the  land  is  con- 
sidered a  more  effective  means.5  When  land  properly  assessed  is 
subsequently  divided  and  the  tax  apportioned,  a  person  who  pur- 
chases a  portion  of  the  land  after  the  assessment  is  not  personally 
liable  for  the  tax.6 

The  principle  that  when  assessors  are  acting  within  their 
jurisdiction  their  acts  cannot  be  collaterally  impeached  is  ap- 
plicable in  actions  by  a  collector  for  the  amount  of  the  tax.7  If 
a  taxpayer  complains  that  he  is  over-assessed  his  only  remedy 

4  Thus  in  Boston  v.  Turner,  201  Mass.  190  (1909)  it  was  held  that  a  col- 
lector may  maintain  a  bill  in  equity  to  enforce  a  trust  against  the  common  law 
assignee  of  the  person  assessed,  when  the  assignment  was  in  trust  for  the  pay- 
ment of  claims.  In  Felker  v.  Standard  Yarn  Co.,  148  Mass.  226  (1889)  it  was 
held  that  a  collector  may  maintain  a  bill  in  equity  against  the  officers  of  a 
corporation  for  the  amount  of  a  tax  on  the  corporation  when  they  have  been 
guilty  of  conduct  which  under  the  statutes  renders  them  personally  liable  for 
the  "  debts "  of  the  corporation.  In  Warr  v.  Collector  of  Taunton,  234  Mass. 
279  (1920),  it  was  held  that  a  collector  might  maintain  a  bill  in  equity  under 
G.  L.  c.  214,  §  3,  cl.  8  to  reach  and  apply  in  payment  of  a  tax  stock  in  domestic 
corporations  belonging  to  the  person  assessed. 

5  Thus  it  was  said  by  the  court  in  Richardson  v.  Boston,  148  Mass.  508 
(1889)  that  when  land  was  taken  by  the  commonwealth  after  the  date  as  of 
which  the  tax  was  assessed,  the  tax  could  be  collected  of  the  owner  by  suit. 
See  also  Hayden  v.  Foster,  13  Pick.  492,  495  (1833);  Sherwin  v.  Boston  Five 
Cents  Savings  Bank,  137  Mass.  444  (1884);  Dunham  v.  Lowell,  200  Mass.  468 
(1909). 

6  Rogers  v.  Gookin,  198  Mass.  434   (1908). 

7  In  an  action  of  contract  to  recover  a  tdx  the  persons  assessed  cannot 
defend  by  impeaching  the  validity  of  the  election  of  the  assessors,  if  the  tax 
was  assessed  by  persons  who  acted  under  color  of  an  election  by  the  town  as 
evidenced  by  its  records  and  who  took  an  official  oath  as  assessors.  Sudbury 
v.  Heard,  103  Mass.  543  (1870).     . 


344  Taxation  in   Massachusetts 

[G.  L.  c.  60,  §  36 
is  a  petition  for  abatement,  and  the  same  principles  which  prevent 
a  person  legally  assessable  from  going  behind  the  assessment 
and  asking  the  court  to  revise  the  amount  in  an  action  of  tres- 
pass against  the  assessors 8  or  in  an  action  of  contract  for  money 
had  and  received  against  the  city  or  town 9  preclude  him  from 
making  a  similar  contest  when  he  is  the  defendant  in  an  action 
of  the  kind  now  under  discussion.10  There  are  certain  exceptions 
and  qualifications  to  this  principle  which  have  been  developed 
and  enunciated  most  thoroughly  in  actions  of  contract  against 
a  city  or  town,  in  which  the  principle  itself  has  been  most 
frequently  called  into  play;11  but  the  exceptions  and  qualifi- 
cations are  equally  applicable  to  actions  in  which  the  collector 
is  the  plaintiff.1 


12 


Collection  from  the  Estates  of  Deceased  Persons  and 
of  Insolvents  and  Bankrupts 

Section  36.  If  a  person  assessed  for  a  tax  dies  or  becomes 
insolvent  before  the  payment  thereof,  or  if  a  tax  is  assessed  upon  the 
estate  of  a  deceased  person,  the  executor,  adminsistrator  or  assignee 
shall,  if  a  demand  has  been  made  on  him  therefor,  forthwith  on 
receipt  of  any  money  applicable  to  the  payment  of  the  tax,  pay  the 
same,  and  in  default  shall  be  personally  liable  therefor  as  for  his 
own  tax. 

When  a  person  assessed  dies  without  paying  his  tax  and  an 
executor  or  an  administrator  is  appointed,  the  collector  cannot 
maintain  an  action  brought  more  than  one  year  after  the  date 
of  the  executor's  or  administrator's  bond,  for  the  collector  having 
the  like  remedy  as  for  his  own  debts  is  subject  to  the  general 
provisions  of  law  applying  to  other  creditors;1  but  when  the 
tax  is  assessed  upon  the  property  of  the  deceased  after  his  death, 

8  G.  L.  c.  59,  §  87,  supra  page  314. 

9  G.  L.  c.  60.  §  98,  infra  page  405. 

10  Davis  v.  Macy,  124  Mass.  193  (1878);  Pierce  v.  Eddy,  152  Mass.  594 
(1891);  Harrington  v.  Glidden,  179  Mass.  486  (1901);  Attorney  General  v. 
Laycock.  221  Mass.  146  (1915);  Collector  of  West  Bridgewater  v.  Dunster,  231 
Mass.    291    (1918). 

11  Infra  page  400. 

12  Ingram  v.  Cowles,  150  Mass.  155  (1889);  Harrington  v.  Glidden,  179 
Mass.  486  (1901).  Thus  a  non-resident  may  contest  his  liability  to  a  tax 
on  the  only  property  within  the  town  claimed  to  be  taxable.  Tobey  v.  Kip, 
214   Mass.  477    (1913). 

i  Rich  v.  Tuckerman,  121   Mass.  222   (1876). 


Collection  of  Local  Taxes  345 

G.  L.  c.  60,  §  36] 

suit  may  be  brought  more  than  one  year  after  the  date  of  the 
bond,2  for  the  tax  is  the  debt  of  the  executor  or  administrator 
and  not  of  the  deceased.3 

An  executor  to  be  subject  to  the  terms  of  this  statute  must 
have  been  appointed  by  a  court  of  this  commonwealth;4  and  the 
"  assignee  "  referred  to  therein  is  an  assignee  under  the  insol- 
vency laws  only;5  but  a  collector  may  proceed  in  equity  against 
a  common  law  assignee  for  the  benefit  of  creditors  under  the 
provisions  of  the  preceding  section.6 

Under  the  state  insolvency  laws,  taxes  constituted  a  pre- 
ferred claim,7  and  a  common  law  assignment  for  the  benefit  of 
creditors  was  not  valid  against  subsequent  insolvency  unless  the 
legal  preferences  were  recognized.8  The  state  insolvency  laws 
are  suspended  while  the  national  bankruptcy  law  is  in  force. 
The  state  statutes  relating  to  the  distribution  of  insolvent 
estates  of  deceased  persons  and  to  the  settlement  of  estates  by 
receivers  are  however  still  in  force  and  under  these  statutes  taxes 
constitute  a  preferred  claim.9  It  has  been  held  that,  even  in. 
the  absence  of  statute,  when  an  estate  is  in  the  hands  of  a  re- 
ceiver appointed  by  a  court  of  equity,  taxes  should  receive 
priority.10  Thus  to  a  certain  extent  the  commonwealth  and 
counties,  cities  and  towns  therein  have  a  prerogative  right  to 
priority  in  the  payment  of  taxes  over  the  claims  of  other  per- 
sons, although  this  right  does  not  extend  so  far  as  to  constitute 
a  lien  on  the  property  of  the  person  assessed  except  as  provided 
by  the  express  wording  of  statutes,11  or  to  entitle  the  collector  to 
follow  the  property  of  a  person  assessed  in  the  hands  of  a  common 
law  assignee  for  the  benefit  of  creditors,12  except  in  equity  when 

2  Dallinger  v.  Davis,  149  Mass.  62  (1889). 

3  Whiton  v.  Balch,  203  Mass.  576  (1909). 
*  Whiton  v.  Balch,  203  Mass.  576  (1909). 

5  Scollard  v.  Edwards,   194   Mass.  77   (1907). 

6  Boston  v.  Turner,  201   Mass.  190  (1909). 

7  See  G.  L.  c.  216,  §  118,  cl.  3,  infra,  page  749.  See  also  the  following 
cases  relating  to  the  collection  of  taxes  under  the  state  insolvency  laws:  Loud 
v.  Holden,  14  Gray  154  (1859);  Bent  v.  Hubbardston,  138  Mass.  99  (1884); 
Ricker  v.  Brooks,   155  Mass.  400   (1892). 

8  G   L.   c.   203,    §41. 

9  G.  L.  c.  206,  §  31,  infra,  page  749  c.  198,  §  1,  infra,  page  748.  Waite  v. 
Worcester  Brewing  Co.,  176  Mass.  283  (1900);  Equitable  Trust  Co.  v.  Kelsey, 
209  Mass.  416  (1911). 

10  Jones  v.  Arena  Publishing  Co.,  171   Mass.  22   (1898). 

11  Fuller  v.  Day,  103  Mass.  481  (1870);  McGee  v.  Salem,  149  Mass.  238 
(1889). 

12  Scollard  v.  Edwards,  194  Mass.  77  (1907). 


346  Taxation   in   Massachusetts 

[G.  L.  c.  60,  §  37 
the  obligation  to  pay  taxes  is  one  of  the  conditions  of  the  assign- 
ment.13 

Under  the  United  States  Bankruptcy  Act,  taxes  due  to  the 
United  States,  state,  county,  district  or  municipality  are  pre- 
ferred claims  and  are  not  released  by  the  bankrupt's  discharge.  It 
is  to  be  noted  that  the  trustee  is  bound  to  pay  all  taxes  owed 
by  the  bankrupt  whether  they  have  been  proved  or  not;14  and 
this  obligation  includes  taxes  assessed  prior  to  the  bankruptcy 
although  not  payable  until  afterward.15  The  United  States  court 
is  not  bound  by  a  decision  of  the  state  court  upon  the  amount 
or  validity  of  a  tax  but  may  decide  such  questions  upon  its  own 
view  of  the  law  and  facts.16  Interest  should  be  paid  on  taxes, 
although  ordinary  debts  do  not  carry  interest  after  bankruptcy.17 

A  tax  may  be  assessed  upon  a  trustee  appointed  by  the 
United  States  court  for  property  of  a  bankrupt  in  his  hands.18 
Although  the  statute  makes  no  provision  for  the  payment  of 
such  taxes  it  is  not  construed  as  exempting  the  trustee  and  he 
is  taxable  under  the  provisions  of  the  state  statute.19  Such-  a  tax 
however  should  be  collected  through  the  medium  of  the  United 
States  court,  as  it  would  not  be  permissible  for  the  collector 
to  distrain  property  in  the  custody  of  the  court  or  to  arrest 
the  body  of  one  of  its  officers  for  a  tax  assessed  upon  him  in  his 
official  capacity.20 

Although  a  tax  is  not  strictly  speaking  a  debt,  the  collector 
under  our  statutes  is  so  far  a  creditor  that  he  may  be  permitted 
to  petition  a  person  assessed  into  bankruptcy. 


21 


COLLECTION  BY   SALE   OR  TAKING   OF   LAND 

The  customary  method  of  collecting  taxes  upon  real  estate 
is  to  sell  the  land  itself  if  the  person  assessed  fails  to  pay  the 

is  Boston   v.   Turner,  201   Mass.   190    (1909). 

14  In  re  Harvey,  122  Fed.  Rep.  745  (1903) ;  In  re  Prince  &  Walter,  131  Fed. 
Rep.  546  (1904);     In  re  Fisher  &  Co.,  148  Fed.  Rep.  907  (1906). 

15  New  Jersey  v.  Anderson,  203  U.  S.  483  (1906);  In  re  Flynn,  134  Fed. 
Rep.   145    (1905). 

«  New  Jersey  v.  Anderson,  203  IT.  S.  483   (1906). 

"  Matter  of  Kallak,   147  Fed.   Rep.  276   (1906). 

18  In  re  Tyler,  149  U.  S.  164  (1893) ;  Swartz  v.  Hammer,  194  U.  S.  441 
(1904). 

™  G.  L.  c.  59,  §  18,  supra,  page  237. 

20  Swartz  v.  Hammer,  194  TJ.  S.  441  (1904). 

2i  In  re  Fisher  &  Co.,  148  Fed.  Rep.  907  (1906);  Boston  v.  Turner,  201 
Mass.    190    (1909). 


Collection  of  Local  Taxes  347 

G.  L.  c.  60,  §  37] 

tax  within  a  reasonable  time  —  in  practice  generally  about  a 
year  —  from  the  demand,  and  such  sales  for  non-payment  of 
taxes  have  directly  or  indirectly  given  rise  to  an  immense  amount 
of  litigation. 

It  should  be  remembered  in  the  first  place  that  the  land  itself 
is  not  taxed,  but  the  owner  or  occupant  is  taxed  by  reason  of 
his  ownership  or  occupancy.1  Originally  taxes  upon  real  estate 
were  collected  as  other  taxes  were,  by  distress  or  arrest,  and  the 
power  to  sell  was  first  introduced  in  1731  as  the  only  available 
means  for  collecting  the  taxes  assessed  upon  the  unimproved 
lands  of  non-resident  proprietors.2  The  tax  lien  was  later  ex- 
tended to  lands  the  owners  of  which  had  removed  from  the 
town  and  to  some  cases  of  assessments  to  persons  in  possession 
who  were  not  owners.3  In  1822  taxes  on  real  estate  in  Boston 
were  made  a  lien  in  all  cases 4  and  two  years  later  the  lien  was 
made  general  throughout  the  commonwealth.5  It  hardly  needs 
to  be  stated  that  the  lien  lies  only  upon  the  parcel  taxed  and 
is  not  a  means  of  enforcing  payment  of  all  taxes  assessed  upon 
its  owner.6  Such  taxes  could  be  enforced  upon  the  land  only 
by  attachment  or  execution  in  an  ordinary  civil  action  by  the 
collector. 

The  sale  of  land  for  non-payment  of  taxes  is  such  an  ex- 
treme interference  with  the  ordinary  rights  of  private  property 
that  the  law  guards  the  rights  of  the  owner  with  the  utmost  care. 
For  many  years  it  was  held  that  the  due  performance  by  the  col- 
lector of  every  step  in  the  proceedings,  even  in  the  most  minute 
particulars,  was  a  condition  precedent  to  the  validity  of  the  sale, 
and  that  a  deviation  from  the  statutory  requirements  was  neither 
substantial  nor  misleading  and  did  not  harm  the  owner  in  the 
slightest  degree  was  no  ground  for  overlooking  it.7 

1  Sherwin  v.  Boston  Five  Cents  Savings  Bank,  137  Mass.  444  (1884);  Rich- 
ardson v.  Boston,  148  Mass.  508  (1889);  Dunham  v.  Lowell,  200  Mass.  468' 
(1909). 

2  Prov.  Laws,  1731-32,  c.  9. 

3  St.  1785,  c.  70,  §  §  6,  15. 

4  St.  1821,  c.  107,  §  9. 

5  St.  1823,  c.  133,  §9;  R.  S.  c.  8,  §18.  See  further  as  to  the  history  of 
tax  liens,  Curtiss  v.  Sheffield,  213  Mass.  239  (1913). 

6  Hayden  v.  Foster,  13  Pick.  492  (1833);  Jennings  v.  Collins,  99  Mass.  29 
(1868);  Barnes  v.  Boardman,  149  Mass.  106  (1889). 

7  Hayden  v.  Foster,  13  Pick.  492  (1833);  Charland  v.  Home  for  Aged 
Women,  204  Mass.  563  (1910).  A  presumption  of  validity  was  however 
allowed  when  the  validity  of  a  tax  sale  was  contested  for  the  first  time  many 
years  after  it  had  taken  place.    Colman  v.  Anderson,   10  Mass.   105    (1813); 


348  Taxation   in   Massachusetts 

[G.  L.  c.  60,  §  37 

The  result  of  the  application  of  these  principles  was  that 
a  tax  title  was  extremely  precarious;8  it  might  be  attacked  for 
the  omission  of  or  an  error  in  any  one  of  the  formal  steps  re- 
quired by  law,  and  even  if  the  purchaser  enjoyed  undisturbed 
possession,  his  title  was  almost  unmarketable.  Registration  of 
a  tax  title  in  the  land  court  was  so  difficult  as  to  be  almost 
impossible.  Moreover  there  was  the  uncertain  period  in  which 
the  land  might  be  redeemed,  not  limited  even  to  six  years  unless 
the  purchaser  had  positive  proof  that  the  owners  of  certain 
interests  in  the  land  were  notified.  On  the  other  hand  an  owner 
of  the  property  who  had  no  actual  knowledge  that  it  had  been 
sold  might  lose  his  right  of  redemption  by  mere  lapse  of  time, 
and  without  the  institution  of  proceedings  against  him  or  the 
adjudication  of  any  court.  The  law  as  to  tax  titles  was  thus 
in  a  very  unsatisfactory  condition,  until  finally  in  1915  it  was 
provided  that  no  tax  title  should  be  held  to  be  invalid  by  reason 
of  any  errors  or  irregularities  in  the  proceedings  of  the  collector 
which  were  neither  substantial  nor  misleading,9  and  at  the  same 
time  a  radical  change  in  the  system  of  tax  sales  was  made,  so 
that  instead  of  conveying  a  title  which  became  absolute  by 
mere  lapse  of  time  if  the  owner  failed  to  exercise  his  right  to 
redeem  within  a  specified  period,  a  tax  sale  thereafter  transferred 
an  interest  which  did  not  ripen  into  a  title  until  the  purchaser, 
by  special  proceedings  in  the  land  court,  foreclosed  the  owner's 
right  of  redemption.10  The  earlier  practices  and  decisions  in 
respect  to  tax  titles  have  thus  become  almost  entirely  obsolete. 

The  statute  which  authorized  the  court  to  disregard  errors 
which  were  neither  substantial  nor  misleading  applied  only  to 
the  proceedings  of  the  collector ;  but  the  court  has  never  required 
proof  of  such  strict  compliance  with  the  proceedings  which  oc- 


Pejepscut  Proprietors  v.  Ransom,  14  Mass.  145  (1817);  Piatt  v.  Glover,  136 
Mass.  115  (1883).  The  lapse  of  time  establishes  presumptively  but  not  con- 
clusively the  performance  of  the  essential  acts.  McDonough  v.  Everett,  237 
Mass.  378  (1921). 

8  It  was  said  by  Sewall,  J.,  as  early  as  1813  in  the  case  of  Colman  v.  Ander- 
son, 10  Mass.  105,  111,  "The  title  under  which  the  tenant  has  been  permitted 
to  succeed,  so  far  as  to  obtain  a  verdict  in  support  of  it,  is  of  that  kind  almost 
proverbially  denominated  a  collector's  title  as  expressing  a  case  of  doubt  and 
difficulty."  In  the  report  of  the  Special  Commission  on  Liens,  Mortgages  and 
Tax  Titles  (1915,  House  Doc.  No.  1600)  it  is  said  (at  page  17)  that  at  that 
time  only  about  two  tax  titles  out  of  one  hundred  were,  when  tested,  found 
to  be  valid. 

9  St.  1915,  c.  237.  §  17.  now  in  G.  L.  c.  60,  §  37,  infra  page  349. 

™  St.  1915,  c.  237;  see  G.  L.  c.  60,  §  §  64-67  inc..  infra  pages  379,  380. 


Collection  of  Local  Taxes  349 

G.  L.  c.  60,  §  37] 

curred  prior  to  the  receipt  of  the  tax  list  and  warrant  by  the 
collector  as  with  those  which  occurred  after  its  receipt  by  the 
collector.  Thus  technical  defects  in  the  appointment  of  the 
assessors  or  the  collector  do  not  invalidate  a  sale;  it  is  sufficient 
that  they  are  officers  de  facto.  If  they  exercised  their  office 
unopposed  it  will  be  assumed  that  they  were  duly  chosen  and 


sworn.11 


A  person  assessed  cannot  question  the  amount  of  his  tax  in 
proceedings  involving  the  validity  of  the  tax  sale,12  nor  will  the 
sale  be  held  invalid  because  the  assessors  failed  to  comply  with 
merely  directory  provisions  of  the  statutes.13  If  an  assessment 
is  so  far  valid  that  the  person  assessed  can  be  compelled  to  pay 
it,  it  is  a  sufficient  basis  for  the  sale  of  his  land.14  On  the  other 
hand,  if  the  land  was  improperly  assessed  it  cannot  be  lawfully 
sold,  even  if  the  land  was  assessed  in  the  way  it  was  assessed  at 
the  owner's  express  request.15 

Extent  and  Duration  of  Lien 

Section  37.  Taxes  assessed  upon  land,  including  those  assessed 
under  sections  twelve,  thirteen  and  fourteen  of  chapter  fifty-nine, 
shall  with  all  incidental  charges  and  fees  be  a  lien  thereon  from  April 
first  in  the  year  of  assessment.  Such  lien  shall  terminate  at  the 
expiration  of  two  years  from  October  first  in  said  year,  if  the  estate 
has  in  the  meantime  been  alienated  and  the  instrument  alienating 
the  same  has  been  recorded,  otherwise  it  shall  continue  until  a  re- 
corded alienation  thereof;  but  if  while  such  lien  is  in  force  a  tax  sale 
or  taking  has  been  made,  and  the  deed  or  instrument  of  taking  has 
been  duly  recorded  within  thirty  days,  but  the  sale  or  taking  is  in- 
valid by  reason  of  any  error  or  irregularity  in  the  proceedings  sub- 

11  Blossom  v.  Cannon,  14  Mass.  177  (1817) ;  Welsh  v.  Briggs,  204  Mass. 
540    (1910). 

12  Garden  Cemetery  Corporation  v.  Baker,  218  Mass.  339   (1914). 

13  As  to  what  constitutes  directory  provisions  see,  G.  L.  c.  59  §  43,  supra 

14  Cone  v.  Forest,  126  Mass.  97  (1879) ;  Westhampton  v.  Searle,  127  Mass. 
502  (1879);  Leominster  v.  Conant,  139  Mass.  384  (1885);  Bemis  v.  Caldwell. 
143  Mass.  299  (1887);  Southworth  v.  Edmands,  152  Mass.  203  (1890).  The 
only  apparent  exception  to  this  doctrine  is  the  rule  that  an  invalid  tax  on 
a  particular  parcel  of  real  estate  cannot  be  the  foundation  of  a  valid  sale,  al- 
though the  owner  was  properly  assessed  upon  other  parcels  and  could  be 
compelled  to  pay  the  entire  amount  assessed  upon  him  by  distress,  arrest  or 
suit.  Schwartz  v.  Boston,  151  Mass.  226  (1890);  Sullivan  v.  Boston,  198  Mass. 
119  (1908).  This  exception  is  however  only  apparent,  for  an  owner  so  assessed 
could  have  the  tax  improperly  assessed  upon  one  parcel  belonging  to  him 
abated,  if  he  took  the  proper  course  of  action. 

*5  Curtiss  v.  Sheffield,  213  Mass.  239  (1913). 


350  Taxation   in    Massachusetts 

[G.  L.  c.  60,  §  37 
sequent  to  the  assessment,  the  lien  shall  continue  for  ninety  days 
after  a  release,  notice  or  disclaimer,  under  sections  eighty-two  to 
eighty-four,  inclusive,  has  been  duly  recorded,  or  for  ninety  days 
after  the  sale  or  taking  has  been  finally  adjudged  invalid  by  a  court 
of  competent  jurisdiction.  There  shall  be  no  lien  for  taxes  re-assessed 
if  the  property  is  alienated  before  the  reassessment.  Said  taxes,  if 
unpaid  for  fourteen  days  after  demand  therefor,  may,  with  said 
charges  and  fees,  be  levied  by  sale  of  the  real  estate,  if  the  lien  thereon 
has  not  terminated  No  tax  title  shall  be  held  to  be  invalid  by  reason 
of  any  errors  or  irregularities  in  the  proceedings  of  the  collector  which 
are  neither  substantial  nor  misleading. 

Several  separate  parcels  of  real  estate  taxable  to  one  person 
are  not  an  integral  subject  of  taxation  so  that  one  parcel  can 
be  sold  for  taxes  on  the  whole.  Whether  the  contiguous  land  of 
one  owner  is  a  single  parcel  or  several  separate  parcels  is  a  ques- 
tion of  fact,  not  always  easy  to  decide;  but  if  the  lands  are 
assessed  as  separate  parcels  the  tax  upon  them  cannot  be  treated 
as  a  single  one  for  purposes  of  collection  by  sale.1  Even  if  the 
assessors  assess  the  lands  of  one  owner  as  a  unit,  if  the  lands  are 
in  fact  separated  by  the  use  or  purpose  to  which  they  are  de- 
voted, or  by  their  mode  of  occupation,  or  are  disconnected  in 
location,  a  tax  laid  generally  cannot  be  made  a  lien  upon  each 
separate  parcel.2 

The  lien  for  the  payment  of  taxes  is  upon  the  land  itself 
rather  than  upon  the  estate  or  interest  of  the  person  assessed. 
A  sale  of  land  for  non-payment  of  taxes  gives  a  paramount  title, 
free  from  the  ownership  or  encumbrance  of  rights  previously 
existing  which  had  been  carved  out  of  the  property  by  an  owner 
or  acquired  in  it  by  prescription  or  otherwise.3  Thus  if  a  tax 
sale  of  mortgaged  land  takes  place,  the  mortgage  is  wiped  out, 
even  if  the  land  was  assessed  to  the  mortgagor.4     So  also  as 

1  Hayden  v.  Foster,  13  Pick.  492  (1833);  Barnes  v.  Boardman,  149  Mass. 
106  (1889);  Phelps  v.  Creed,  231  Mass.  228  (1918). 

2  Jennings  v.  Collins,  99  Mass.  29  (1868);  Boston  Rubber  Shoe  Co.  v. 
Maiden,  216  Mass.  508  (1914).  As  to  what  constitutes  a  separate  parcel  in 
proceedings  to  assess  damages  to  land  by  a  taking  for  the  public  use,  see  Wel- 
lington v.  Boston  &  Maine  Railroad.  158  Mass.  185  (1893),  164  Mass.  380 
(1895);   Lincoln   v.   Commonwealth,   164   Mass.   368   (1895). 

3  Langley  v.  Chapin,  134  Mass.  82  (1883);  Hunt  v.  Boston,  183  Mass.  303 
(1903);  Weeks  v.  Grace,  194  Mass.  296  (1907);  Davis  v.  Allen,  224  Mass.  551 
(1916). 

4  Parker  v.  Baxter,  2  Gray  185  (1854);  Coughlin  v.  Gray,  131  Mass.  56 
(1881). 


Collection  of  Local  Taxes  351 

G.L.c.  60,  §37] 

between  taxes  of  successive  years,  the  latest  is  paramount.5  For 
practical  reasons  an  exception  was  made  to  the  literal  appli- 
cation of  this  rule  in  1905  when  it  was  provided  that  the  land 
should  be  sold  subject  to  and  with  the  benefit  of  easements 
and  restrictions  upon  or  appurtenant  to  it.6 

The  lien  comes  into  existence  on  the  first  day  of  April  in 
the  year  that  the  tax  is  assessed,  and  constitutes  an  encumbrance 
at  once,  although  the  tax  is  not  committed  to  the  collector  or 
even  actually  assessed  until  later  in  the  year.7  The  lien  con- 
tinues until  the  tax  is  paid  or  the  land  is  alienated;8  and  it 
continues  for  two  years  from  the  first  day  of  October  in  the 
year  in  which  the  tax  is  assessed  whether  the  land  is  alienated 
or  not.  If  there  has  been  no  alienation  the  lien  is  equally  ef- 
fective after  the  expiration  of  two  years  as  before.9  After  notice 
of  a  tax  sale  has  been  given  no  subsequent  alienation  can  defeat 
the  lien.10 

There  can  be  no  lien  for  taxes  re-assessed  if  the  property  is 
alienated  before  the  re-assessment.  A  sale  of  mortgaged  land 
under  a  power  in  the  mortgage  constitutes  such  alienation;11  but 
a  mere  entry  to  foreclose  a  mortgage  does  not,  even  when  the 
mortgagee  remains  in  possession.12 

The  provision  that  there  might  be  a  re-assessment  within 
ninety  days  after  a  tax  title  had  been  conceded  or  adjudicated 
to  be  invalid  was  first  added  in  1915,13  but  in  such  way  as  to 
impose  a  possible  personal  liability  on  the  purchaser  of  land 
subject  to  an  invalid  tax  lien.    This  probably  unconstitutional 

5  Chadwick  v.  Cambridge,  230  Mass.  580   (1918). 

6  St.  1905,  c.  193,  now  G.  L.  c.  60,  §  45,  infra  page  357.  So  also  a  sale 
for  non-payment  of  taxes  not  accompanied  by  even  momentary  possession,  fol- 
lowed by  a  quitclaim  of  the  tax  title  to  the  record  owner,  occurring  during 
a  period  of  twenty  years'  adverse  possession  by  another  did  not,  at  least  prior 
to  the  statute  validating  a  conveyance  by  a  disseizee  (St.  1891,  c.  354;  G.  L.  c. 
183,  §  7)  defeat  the  acquisition  of  title  by  the  disseizor.  Harrison  v.  Dolan, 
172    Mass.   395    (1899). 

7  Cochran  v.  Guild,  106  Mass.  29  (1870) ;  Hill  v.  Bacon,  110  Mass.  387  (1872) ; 
Newcomb  v.  Wallace,  112  Mass.  25  (1873);  Davis  v  Bean,  114  Mass.  358  (1874). 

8  Hayden  v.  Foster,   13  Pick.  492    (1833). 

9  Abbott  v.  Frost,  185  Mass.  398  (1904)  overruling  suggestion  in  Sherwin 
v.  Boston  Five  Cents  Savings  Bank,  137  Mass.  444  (1884)  that  after  two  years 
only  the  interest  in  the  property  of  the  person  assessed  could  be  sold. 

10  Abbott  v.  Frost,  185  Mass.  398   (1904). 
"  Davis  v.  Boston,  129  Mass.  377   (1880). 

12  Market  National  Bank  v.  Belmont,  137  Mass.  407  (1884);  Sherwin  v. 
Boston  Five  Cents  Savings  Bank,  137  Mass.  444  (1884).  See  also  as  to  re- 
assessment, G.  L.  c.  59,  §  §  77,  78,  supra  page  306. 

13  St.    1915,   c.   237,   §  17. 


352  Taxation   in   Massachusetts 

[G.L.c.  60,  §§38-40  inc. 
feature  of  the  law  was  omitted  in  the  recent  consolidation  of  the 
General  Laws.14 

Demand  on  Mortgagee  or  at  Designated  Place 

Section  38.  If  a  mortgagee  of  land  situated  in  the  place  of  his 
residence,  before  September  first  of  the  year  in  which  the  tax  is 
assessed,  gives  written  notice  to.  the  collector  that  he  holds  a  mortgage 
on  land,  with  a  description  of  the  land,  the  demand  for  payment  shall 
be  made  on  the  mortgagee  instead  of  the  mortgagor. 

Section  39.  If  a  mortgagee  or  an  owner  of  land  causes  a  notice, 
designating  a  place  in  the  town  where  such  land  lies  at  which  all 
papers  relative  to  taxes  on  such  land  which  are  to  be  served  on  him 
may  be  left,  to  be  recorded  in  January  of  any  year  in  the  office  of 
the  clerk  of  such  town  and,  during  said  month,  to  be  delivered  to  the 
collector  thereof,  the  collector  shall  serve  at  such  place  any  notice, 
summons,  demand  for  payment  or  other  paper  relating  to  the  taxes 
on  such  land  which  is  to  be  served  by  him.  The  collector  shall  not 
advertise  the  sale  of  such  land  for  two  months  after  the  time  of  a 
demand  so  made. 

These  two  sections  illustrate  the  effort  that  is  made  through- 
out the  statutes  relating  to  the  sale  of  land  for  non-payment 
of  taxes  to  make  it  impossible  for  a  mortgagee  or  a  non-resident 
owner  of  land  to  lose  his  land  without  his  knowledge  by  reason 
of  the  default  of  some  one  else  in  the  payment  of  taxes.  It  will 
be  seen  that  such  a  person  if  he  exercises  reasonable  diligence 
is  amply  protected. 

Publication  and  Posting  of  Notice  of  Sale 

Section  40.  The  collector  shall  give  notice  by  publication 
of  the  time  and  place  of  sale  of  land  for  non-payment  of  taxes.  Such 
notice  shall  contain  a  substantially  accurate  description  of  the  several 
rights,  lots  or  divisions  of  the  land  to  be  sold,  which  shall  be  furnished 
to  the  collector  by  the  assessors  upon  demand  of  the  collector,  the 
amount  of  the  tax  assessed  on  each,  and  the  names  of  all  owners 
known  to  the  collector.  Such  notice  of  the  sale  of  the  undivided 
real  estate  of  a  deceased  person  assessed  to  his  heirs  or  devisees  or 
assessed  in  general  terms  to  his  estate  shall  contain  the  names  of  all 

14  St.  1918,  c.  254,  §46.    See  Preliminary  Report  of  Commissioners,  p.  111. 


Collection  of  Local  Taxes  353 

G.L.c.  60,  §§41,42] 

the  heirs  or  devisees  interested  in  such  real  estate,  if  the  probate 

records  of  the  county  where  the  land  lies  disclose  their  identity. 

Section  41.  If  land  to  be  sold  is  situated  in  a  town  the  name 
of  which  has  been  changed  by  law  within  three  years  preceding  the 
sale,  the  collector  shall  designate  such  town  in  his  notices  of  the  sale 
by  both  its  former  and  existing  name. 

Section  42.  The  collector  shall,  three  weeks  before  the  sale, 
post  a  notice  similar  to  that  required  by  section  forty  in  some  con- 
venient and  public  place. 

The  "  publication  "  referred  to  in  this  section  is  of  course 
the  publication  in  a  newspaper  as  denned  in  the  first  section 
of  this  chapter.1 

The  requirements  of  this  section  are  pretty  rigidly  enforced. 
The  object  of  the  notice  is  to  inform  the  owner,  whether  his 
land  is  taxed  to  him  or  to  an  occupant,  as  well  as  the  public 
generally,  that  it  is  to  be  sold.  The  notice  should  be  sufficiently 
definite  to  enable  the  owner  and  those  who  attend  the  sale 
as  prospective  purchasers  to  identify  the  premises,  so  that  either 
the  owner  may  prevent  the  sale  by  the  payment  of  the  tax,  or, 
if  a  sale  takes  place,  bidders  will  be  attracted  and  will  compete 
for  the  purchase  of  the  land.  The  formalities  of  a  technical 
survey  are  not  required  and  a  slight  misdescription  will  not 
invalidate  the  sale,  but  the  purpose  of  the  statute  plainly  is 
that  the  taxpayer  and  the  bidder  alike,  with  the  description  as 
published  in  hand,  can  from  its  contents  substantially  locate  the 
land  which  it  is  proposed  to  sell.2  A  description  in  the  notice  which 
fails  to  comply  with  these  requirements  renders  the  whole  proceed- 
ings void.3  Similarly  sales  have  been  invalidated  because  the  notice 
stated  incorrectly  the  year  for  which  the  tax  was  assessed,4  or 
the  amount  of  the  tax,5  or,  when  land  was  to  be  sold  for  the 

1  Supra  page  319.  The  advertisement  must  be  printed  in  English  in  a 
.newspaper  printed  in  English.     Connors  v.  Lowell,  209   Mass.  Ill    (1911). 

2  Williams  v.  Bowers,  197  Mass.  565  (1908).  A  description  by  reference  to 
a  lot  by  number  on  a  plan  recorded  in  the  assessors'  office  is  sufficient, 
although  the  plan  was  not  recorded  in  the  registry  of  deeds.  Larsen  v.  Dillen- 
schneider,  235  Mass.  56   (1920). 

3  Farnum  v.  Buffum,  4  Cush.  260  (1849) ;  Williams  v.  Bowers,  197  Mass.  565 
(1908).  A  description  is  insufficient  although  it  refers  to  lots  on  a  recorded  plan 
if  it  merely  states  that  the  land  to  be  sold  is  a  certain  number  of  feet,  being 
part  of  such  lots.    McDonough  v.  Everett,  237  Mass.  378  (1921). 

4  Knowlton  v.  Moore,   136   Mass.  32    (1883). 

5  Alexander  v.  Pitts,  7  Cush.  503  (1851);  Shurtleff  v.  Potter,  206  Mass. 
286   (1910). 


354  Taxation   in    Massachusetts 

[G.  L.  c.  60,  §  43 
taxes  of  two  successive  years,  stated  the  total  amount  due  as 
a  lump  sum.6  How  far  these  decisions  are  affected  by  the  statute 
of  1915  providing  that  no  error  in  the  proceedings  of  the  col- 
lector shall  affect  the  validity  of  a  tax  title  unless  it  is  sub- 
stantial or  misleading  is  an  interesting  question  which  cannot 
yet  be  answered  authoritatively.  Even  before  the  statute  it  was 
held  that  if  a  notice  states  incorrectly  something  it  is  not  required 
to  state  at  all,  if  it  is  otherwise  not  misleading,  the  error  does 
not  invalidate  the  sale.7 

If  the  notice  advertises  that  the  sale  will  be  conducted  in 
a  manner  not  authorized  by  law,  but  in  fact  the  sale  is  carried 
out  in  a  lawful  manner,  the  sale  is  none  the  less  invalid;  for  a 
valid  notice  is  a  condition  precedent  to  the  validity  of  the  sale.8 

It  was  held  in  an  early  decision  that  a  tax  sale  was  not  invalid 
because  the  notice  failed  to  state  the  hour  of  the  sale;9  but  in 
view  of  the  authorized  forms  it  would  seem  that  the  law  would 
be  otherwise  now  unless  it  was  thought  that  such  an  irregularity 
was  neither  substantial  nor  misleading. 

Posting  of  the  notice  of  a  sale  in  some  convenient  and  public 
place,  as  well  as  its  publication  in  a  newspaper,  is  a  condition  pre- 
cedent to  the  validity  of  the  sale ;  and  unless  there  is  satisfactory 
affirmative  evidence  that  the  notice  was  duly  posted  the  sale 
is  invalid.10 

Conduct  of  the  Sale 

Section  43.  If  the  taxes  are  not  paid,  the  collector  shall,  at  the 
time  and  place  appointed  for  the  sale,  sell  by  public  auction,  for  the 
amount  of  the  taxes  and  necessary  intervening  charges,  the  smallest 
undivided  part  of  the  land  which  will  bring  said  amount,  or  the  whole 
for  said  amount,  if  no  person  offers  to  take  an  undivided  part;  and 
may  at  such  sale  require  of  the  purchaser  an  immediate  deposit  of 
such  sum  as  he  considers  necessary  to  insure  good  faith  in  payment 
of  the  purchase  money,  and,  on  failure  of  the  purchaser  to  make  such 
deposit  forthwith,  the  sale  shall  be  void  and  another  sale  may  be  made 
as  provided  in  this  chapter. 

e  Lancy  v.  Snow,  180  Mass.  411   (1902). 

»  Alvord  v.  Collin,  20  Pick.  418  (1838). 

s  Wall  v.  Wall,  124  Mass.  65  (1878).  See  also  Sanford  v.  Sanford,  135 
Mass.  314  (1883),  to  same  effect.  St.  1878,  c.  229,  validating  such  sales  already 
made  was  held  unconstitutional  in  Foster  v.  Foster,  129  Mass.  559  (1880). 

9  Colman  v.  Anderson,   10   Mass.   105.   115    (1813). 

10  Farnum  v.  Buffum,  4  Cush.  260  (1849). 


Collection  of  Local  Taxes  355 

G.  L.  c.  60,  §  44] 

Section  44.  The  collector  may  adjourn  the  sale  from  time  to 
time  not  exceeding  seven  days  in  all,  and  shall  give  notice  of  every 
adjournment  by  a  public  declaration  thereof  at  the  time  and  place 
appointed  for  the  sale. 

Under  the  Revised  Statutes  of  1836  the  collector  was  au- 
thorized to  sell  only  such  portion  of  the  land  as  was  sufficient  to 
pay  the  taxes  and  charges,  unless  the  land  was  so  situated 
that  it  could  not  be  conveniently  divided  without  injury  to  the 
residue.  If  he  was  obliged  to  sell  more  than  enough  to  satisfy 
the  taxes  and  charges,  it  was  provided  that  he  should  pay  over 
the  residue  of  the  proceeds  to  the  owner.  In  this  state  of  the 
law  it  was  held  that  a  tax  sale  was  void  when  a  portion  of  the 
land  only  was  sold  and  it  did  not  appear  by  the  collector's  deed 
or  otherwise  that  the  parcel  could  not  have  been  further  divided 
and  the  necessary  sum  raised  by  a  still  smaller  portion  without 
causing  injury  to  the  residue  of  the  property.1 

By  the  General  Statutes  the  collector  might  sell  enough  of 
the  land  or  of  its  rents  and  profits  to  pay  the  tax  and  charges, 
or  sell  the  whole  or  any  portion  of  the  land  and  return  the  surplus 
to  the  owner.  This  provision  was  continued  in  the  Public  Stat- 
utes and  in  the  codification  of  1888  without  substantial  change, 
and  while  it  was  in  force  it  was  held  to  be  wholly  optional  with 
the  collector  whether  to  sell  the  whole  or  a  part  of  an  estate.2 
Under  these  statutes  the  practice  grew  up  of  selling  an  undivided 
portion  of  the  estate  and  was  followed  more  or  less  extensively 
until  1878  when  the  supreme  court  decided  that  such  a  sale 
was  unauthorized  by  the  statutes  then  in  force.3  The  legis- 
lature at  once  passed  an  enactment  attempting  to  validate  sales 
already  made  in  accordance  with  this  practice,  but  the  statute  was 
held  to  be  unconstitutional.4 

Controversies  occasionally  arose  regarding  the  disposition  of 
the  surplus.  It  was  held  that  a  tax  sale  was  not  invalid  because 
the  collector  expressed  a  wish  that  no  one  would  bid  more  than 
the  amount  of  the  tax  and  charges  on  account  of  the  incon- 
venience of  disposing  of  the  surplus.5    It  was  also  held  that  the 

1  Crowell  v.  Goodwin,  3  Allen    535    (1862). 

2  South  worth  v.  Edmands,  152  Mass.  203  (1890). 
a  Wall    v.  Wall,  124  Mass.  65   (1878). 

*  Forster  v.  Forster,  129  Mass.  559  (1880). 

5  Southworth  v.  Edmands,  152   Mass.  203   (1890). 


35G  Taxation   in    Massachusetts 

[G.  L.  c.  60,  §  44 

collector  need  not  at  his  peril  divide  the  surplus  among  the 
holders  of  different  interests  and  estates  in  the  land  or  mortgages 
and  liens  upon  it,  but  that  the  "  owner  "  within  the  meaning 
of  the  statute  was  the  holder  of  the  legal  title  at  the  time  of  the 
sale  or  a  mortgagee  to  whom  it  had  been  assessed.6  The  holders 
of  the  various  legal  and  equitable  interests  in  the  land  might 
follow  the  proceeds  in  equity.7 

In  1900  the  statute  was  put  in  substantially  its  present  form, 
and  the  collector  sells  the  smallest  undivided  interest  that  will 
bring  enough  to  pay  the  tax  and  charges  or  the  whole  if  neces- 
sary. In  no  case  is  there  any  surplus  to  return  to  the  owner. 
Any  doubt  which  may  have  existed  upon  this  point  was  removed 
by  the  phraseology  adopted  in  the  General  Laws.  If  no  one 
offers  to  take  an  undivided  portion  the  first  person  who  makes 
a  bid  to  take  the  whole  gets  the  title. 

Land  cannot  be  sold  for  a  greater  amount  than  is  due.  While 
the  validity  of  a  tax  sale  cannot  be  questioned  merely  because 
the  tax  as  assessed  and  committed  to  the  collector  was  excessive 
in  amount 8  or  levied  in  part  for  an  unlawful  purpose,9  yet  if 
the  collector  sells  the  land  for  a  tax  in  excess  of  that  assessed,10 
or  includes  items  of  interest 1X  and  costs 12  not  warranted  by  law, 
the  sale  is  void.  When  land  is  advertised  to  be  sold  at  the 
same  time  and  place  for  the  taxes  of  two  successive  years,  the 
property  may  be  lawfully  sold  separately  for  each  of  the  two 
taxes;13  or  sold  singly  for  both.14 

When  a  tax  sale  is  valid  the  purchaser  gets  not  only  a  new 
and  paramount  title,  but  a  seisin  at  the  moment  of  conveyance ; 
and  formerly  possession  was  presumed  to  follow  the  title.15  Since 
the  enactment  of  the  General  Laws  however  it  has  been  provided 
that  the  purchaser  shall  not  have  right  of  possession  until  two 
years  after  the  sale.16    Whether  the  sale  is  valid  or  not,  if  it 

6  Worcester  v.  Boston,   179  Mass.  41    (1901). 
*  Cummins  v.  Christie.   179  Mass.  74    (1901). 

8  Garden  Cemetery   Corporation   v.  Baker,  218   Mass.  339    (1914). 

9  G.  L.  c.  59,  §  82,  supra  page  311. 

10  Shurtleff  v.  Potter,  206  Mass.  286  (1910).  So  also,  if  part  of  a  tax  has 
been  paid  and  the  collector  sells  for  the  whole  tax  instead  of  for  the  balance, 
the  sale  is  void.     Hurd  v.  Melrose,  191   Mass.  576   (1906). 

»  Kelly   v.  O'Rourke,   232   Mass.   168    (1919). 

12  Koch  v.  Austin,  225  Mass.  215  (1916). 

13  Keen   v.   Sheehan,    154    Mass.   208    (1891). 
i*  Lancy   v.   Snow,    180   Mass.   411    (1902). 
15  Perrv  v.  Lancy,  179  Mass.  183  (1901). 

i6  St.  1918,  c.  247,  §  49,  now  G.  L.  c.  60,  §  45,  infra  page  357. 


Collection  of  Local  Taxes  357 

G.  L.  c.  60,  §  45] 

appears  to  be  valid  on  its  face  the  purchaser  gets  such  a  title 
as  to  be  the  record  owner  to  whom  subsequent  taxes  should  be 
assessed.17 

The  validity  or  effect  of  a  sale  for  non-payment  of  taxes  may 
under  some  circumstances  be  affected  by  the  conduct  or  relations 
of  the  parties.  It  would  seem  that  if  the  owner  was  present 
at  the  sale  and  expressed  a  wish  that  it  should  proceed  he  might 
be  afterward  estopped  from  contesting  the  validity  of  the  sale; 
but  if  there  were  several  owners  and  not  all  were  present  such 
conduct  on  the  part  of  those  who  were  present  could  have  no 
effect;  they  could  not  waive  the  rights  of  the  others;  and  the 
sale  cannot  be  good  in  part  and  bad  in  part,  and  if  not  wholly 
valid  is  wholly  invalid.18 

If  a  person  who  is  bound  to  pay  the  taxes  purchases  the 
land  at  the  sale,  his  act  simply  amounts  to  the  payment  of  the 
taxes  and  gives  him  no  better  or  more  paramount  title  than  he 
had  before.19  A  mortgagee  in  possession  cannot  obtain  a  tax 
title  that  will  defeat  or  diminish  the  mortgagor's  right  to  redeem 
from  the  mortgage;20  and  if  a  mortgagor  acquires  a  tax  title  it 
enures  to  the  benefit  of  the  mortgagee.21  A  life  tenant  or  one 
who  purchases  his  estate  cannot  by  buying  the  tax  title  acquire 
any  adverse  rights  against  the  remaindermen;  but  such  a  pur- 
chaser may  afterward  acquire  an  independent  title  by  a  con- 
veyance from  the  grantees  at  the  sale  for  non-payment  of  the 
tax  of  a  subsequent  year,2 


22 


The  Collector's  Deed 

Section  45.  The  collector  shall  execute  and  deliver  to  the 
purchaser  a  deed  of  the  land,  stating  the  cause  of  sale,  the  price 
for  which  the  land  was  sold,  the  name  of  the  person  on  whom  the  de- 
mand for  the  tax  was  made,  the  places  where  the  notices  were  posted, 
the  name  of  the  newspaper  in  which  the  advertisement  of  the  sale 
was  published,  and  the  residence  of  the  grantee,  and  shall  contain 

W  Welsh  v.  Briggs,  204  Mass.  540   (1910). 

18  Reed  v.  Crapo,  127  Mass.  39   (1879). 

19  Home  Savings  Bank  v.  Boston,  131  Mass.  277  (1881);  Hurley  v.  Hurley, 
148  Mass.  444  (1889);  Solis  v.  Williams,  205  Mass.  350  (1910). 

20  Walsh  v.  Wilson,  130  Mass.  124   (1881). 

21  Coughlin  v.  Gray,  131  Mass.  56  (1881);  Holbrook  v.  Brown,  214  Mass. 
542  (1913);  Federal  Trust  Co.  v.  Bristol  County  St.  Ry.  Co.,  218  Mass.  367 
(1914). 

22  Solis  v.  Williams,  205  Mass.  350  (1910). 


358  Taxation   in    Massachusetts 

[G.  L.  c.  60,  §  45 
a  warranty  that  the  sale  has  in  all  particulars  been  conducted  accord- 
ing to  law.  The  deed  shall  convey  the  land  to  the  purchaser,  subject 
to  the  right  of  redemption.  The  title  thus  conveyed  shall,  until 
redemption  or  until  the  right  of  redemption  is  foreclosed  as  herein- 
after provided,  be  held  as  security  for  the  repayment  of  the  purchase 
price,  with  all  intervening  costs,  terms  imposed  for  redemption  and 
charges,  with  interest  thereon,  and  the  premises  conveyed  shall  also 
be  subject  to  and  have  the  benefit  of  all  easements  and  restrictions 
lawfully  existing  in,  upon  or  over  said  land  or  appurtenant  thereto 
when  so  taken.  Such  deed  shall  not  be  valid  unless  recorded  within 
thirty  days  after  the  sale,  and  if  so  recorded  it  shall  be  prima  facie 
evidence  of  all  facts  essential  to  the  validity  of  the  title  thereby  con- 
veyed, and  this  provision  shall  apply  to  deeds  executed  before  as  well 
as  since  July  first,  nineteen  hundred  and  fifteen.  No  sale  hereafter 
made  shall  give  to  the  purchaser  any  right  to  possession  of  the  land 
until  the  expiration  of  two  years  after  the  date  of  the  sale. 

The  section  relating  to  the  collector's  deed  has  not  been 
materially  modified  since  1785  except  to  make  it  conform  to 
the  various  changes  of  the  substantive  law  relating  to  the  estate 
transferred  by  the  sale.  In  1901  a  provision  was  added  at  the 
end  of  the  section  that  at  the  expiration  of  five  years  from 
the  date  of  record  a  collector's  deed  should  be  prima  facie  evi- 
dence of  the  facts  recited  therein ;  in  the  following  year  this  pro- 
vision was  stricken  out  and  it  was  replaced  in  much  its  present 
form  in  191 1.1  In  1905  the  clause  exempting  easements  and 
restrictions  from  the  destructive  effect  of  a  tax  sale  was  inserted 
—  a  beneficial  provision,  for  as  the  law  previously  stood  an 
owner  might  rid  himself  of  restrictions  by  a  collusive  tax  sale 
of  which  the  persons  for  whose  benefit  the  restrictions  were  im- 
posed would  probably  be  unaware  until  too  late.  In  1915 
provision  was  made  for  altering  the  form  of  the  deed  in  accord- 
ance with  the  change  in  the  substantive  law  by  which  foreclosure 
of  a  tax  title  was  made  necessary  before  an  absolute  title  passed 

1  It  was  said  by  the  court  in  Conners  v.  Lowell,  209  Mass.  Ill  (1911), 
that  adherence  to  the  somewhat  strict  rules  which  had  been  established  as  to 
tax  deeds  had  assumed  a  new  importance  in  view  of  the  sweeping  provision 
of  the  statute  (St.  1911,  c.  370)  that  such  deeds  when  recorded  were  prima 
facie  evidence  of  all  acts  essential  to  their  validity.  The  statute  means  that 
when  there  is  no  affirmative  extrinsic  evidence  affecting  the  regularity  of  the 
assessment  and  levy,  the  recitals  in  the  collector's  deed  are  to  be  taken  as 
true.     Isbell  v.  Greylock  Mills,  231   Mass.  233   (1918). 


Collection  of  Local  Taxes  359 

G.L.c.  60,  §45] 

to  the  purchaser.2  When  the  General  Laws  were  enacted  this 
section  was  redrafted  so  as  to  make  it  clear  that  a  tax  title  is 
a  new  and  paramount  title ;  that  the  deed  is  prima  facie  evidence 
of  all  facts  essential  to  the  validity  of  the  title  and  not  merely 
of  those  facts  which  are  necessarily  recited  therein;  and  that 
the  purchaser  has  no  right  of  possession  until  two  years  have 
elapsed  from  the  date  of  the  sale.3 

A  tax  deed,  when  not  in  the  language  of  the  statute,  must 
set  out  either  in  precise  phrase  or  by  fair  intendment  to  a  reason- 
able certainty  a  statement  of  performance  of  all  those  acts  which 
are  essential  to  the  existence  of  a  legal  cause  of  sale;4  but  if  the 
conditions  precedent  to  a  valid  sale  have  actually  been  complied 
with,  the  statement  in  the  deed  of  the  cause  of  sale  need  be  made 
only  with  reasonable  certainty.5  A  slight  and  immaterial  mis- 
nomer of  the  owner  will  not  invalidate  the  deed;6  but  a  failure  to 
state  the  residence  of  the  grantee  or  the  name  of  the  newspaper 
in  which  the  notice  of  the  sale  was  published  was  held  to  be  fatal 
under  the  strict  requirements  of  the  earlier  statute;7  such  omis- 
sions would  not  necessarily  now  be  thought  substantial  or  mis- 
leading. » 

2  St.    1915,   c.   237. 

3  In  the  statute  as  it  previously  stood  it  provided  that  the  deed  should  con- 
vey merely  all  the  right  and  interest  of  the  owner.  It  had  been  held  that  this 
provision  was  not  intended  to  cut  down  the  effect  of  a  sale  as  passing  a  para- 
mount title,  Langley  v.  Chapin,  134  Mass.  82  (1883),  but  merely  to  declare 
that  the  effect  of  the  sale  was  not  diminished  by  an  intervening  alienation; 
but  the  phraseology  was  misleading  and  was  widely  changed.  The  provision 
in  the  statute  of  1911  that  a  deed  was  prima  facie  evidence  of  the  facts  essential 
to  its  validity  was  held  in  Welch  v.  Haley,  224  Mass.  261  (1916)  to  apply  only 
to  facts  necessarily  recited  in  the  deed;  and  the  phraseology  of  the  statute 
was  changed  to  avoid  the  effect  of  this  decision.  Prior  to  1915  a  purchaser  at 
a  tax  sale  undoubtedly  had  the  right  to  take  possession  of  the  property  imme- 
diately, Perry  v.  Lancy,  179  Mass.  183  (1901)  but  since  1915,  when  it  was  pro- 
vided that  a  tax  title  was  only  security  until  the  right  of  redemption  was 
foreclosed,  it  was  open  to  some  doubt  whether  the  purchaser  was  entitled  to 
possession  at  once.    The  statute  makes  it  clear  that  he  is  not. 

4  Harrington  v.  Worcester,  6  Allen  576  (1863);  Reed  v.  Crapo,  127  Mass. 
39  (1879);  Langdon  v.  Stewart,  142  Mass.  576  (1886);  Downey  v.  Lancy,  178 
Mass.  465  (1901).  A  deed  as  invalid  as  not  correctly  stating  the  name  of  the 
person  on  whom  the  demand  was  made,  if  the  person  designated  was  dead 
at  the  time  of  the  alleged  demand  and  the  fact  of  his  death  appeared  in  the 
probate  records.     Fuller  v.  Fuller,  228  Mass.  441    (1917). 

5  Adams  v.  Mills.  126  Mass.  278  (1879);  Pixley  v.  Pixley,  164  Mass.  335 
(1895);  Charland  v.  Home  for  Aged  Women,  204  Mass.  563  (1910);  Connors  v. 
Lowell,  209  Mass.  Ill   (1911). 

6  Lancy  v.  Snow,   180   Mass.  411    (1902). 

7  Lunenburg  v.  Walter  Heywood  Chair  Co.,  118  Mass.  540  (1875) ;  Knowl- 
ton  v.  Moore,  136  Mass.  32  (1883);  Conners  v.  Lowell,  209  Mass.  Ill  (1911). 


360  Taxation  in   Massachusetts 

[G.L.c.  60,  §46 

The  deed  to  be  valid  must  be  acknowledged,  and  recorded 
within  thirty  days  of  the  sale,8  and  must  contain  a  description 
of  the  land  sufficiently  accurate  for  identification;9  but  a  slight 
error  which  does  not  make  the  description  uncertain  does  not 
invalidate  the  deed.10  If  the  deed  by  mistake  conveys  less  than 
the  whole  parcel  it  cannot  be  sustained  as  a  valid  conveyance  of 
the  land  actually  described  in  the  deed,  for  the  collector  has 
now  no  authority  to  sell  less  than  than  the  whole  or  an  undivided 
part  of  the  whole.11  So  also  a  sale  cannot  be  lawfully  made  of 
any  larger  estate  than  was  advertised.12 

The  grantee  of  the  deed  must  be  the  purchaser  at  the  sale; 
even  if  the  purchaser  assents  to  a  change  and  the  collector  com- 
plies, the  deed  is  invalid,  for  the  collector  cannot  lawfully  convey 
a  title  in  any  other  way  that  that  which  the  law  prescribes.13 
To  establish  a  valid  title,  the  purchaser  must  pay  the  amount 
bid  within  twenty  days  of  the  sale.14 

Reimbursement  of  Purchaser  at  Invalid  Sale 

Section  46.  If  it  subsequently  appears  that,  by  reason  of  error, 
omission  or  informality  in  the  assessment  or  the  sale,  the  purchaser 
has  no  claim  upon  the  property  sold,»he  may  within  six  months  after 
the  date  of  the  deed,  offer  by  writing  given  to  the  collector  to  sur- 
render and  discharge  his  deed  or  to  assign  and  transfer  to  the  town 
all  his  right,  title  and  interest  in  the  premises,  as  the  collector  shall 
elect.  Such  offer  shall  contain  a  specific  statement  of  the  reason 
why  the  holder  has  no  claim  on  the  land  sold,  with  the  evidence 
on  which  he  relies,  and  if  such  evidence  consists  of  any  public  record 
or  of  facts  shown  therein,  such  offer  shall  contain  a  specific  reference 
thereto.    Upon  such  surrender  and  discharge  or  assignment  and  trans- 

s  Tilson  v.  Thompson,  10  Pick.  359  (1835);  Powers  v.  Radding,  225  Mass. 
110,   114   (1916). 

»  Hill  v.  Mowry.  6  Gray  551  (1856);  Todd  v.  Lunt.  148  Mass.  322  (1889); 
Roberts  v.  Welsh.  192  Mass.  278  (1906);  Conners  v.  Lowell,  209  Mass.  Ill 
(1911).  A  description  of  land  by  its  lot  number  on  a  plan  recorded  in  the 
registry  of  deeds,  and  referring  to  the  volume  and  number  of  the  plan,  is  suffi- 
cient. Welch  v.  Haley,  224  Mass.  261  (1916) ;  and  the  same  rule  applies  when 
the  plan  referred  to  is  recorded  in  the  assessors'  office,  though  not  in  the  reg- 
istry of  deeds.    Larsen  v.  Dillenschneider,  235  Mass.  56  (1920). 

10  Roberts  v.  Welsh,  192  Mass.  278  (1906);  Welsh  v.  Briggs,  204  Mass.  540 
(1910). 

11  Roberts   v.  Welsh,   192   Mass.  278    (1906). 

12  Conners  v.  Lowell,  209  Mass.  Ill    (1911). 

13  Spring   v.   Cambridge,    199    Mass.    1    (1908). 

14  G.  L.  c.  60,  §  49,  infra,  page  363. 


Collection  of  Local  Taxes  361 

G.  L.  c.  60,  §  46] 

fer,  the  town  shall  pay  to  the  purchaser  the  amount  which  he  paid, 
with  interest  at  the  rate  of  eight  per  cent  per  annum,  which  payment 
shall  be  in  full  for  all  damages  for  any  defects  in  the  proceedings  or 
under  the  warranty  in  such  deed.  No  town  and  no  treasurer  or  col- 
lector thereof  shall  pay  or  be  liable  for  any  amount  due  under  this 
section  unless  such  statement  is  filed. 

Prior  to  the  enactment  of  this  statute  a  purchaser  of  a  tax 
title  which  subsequently  proved  invalid  had  no  remedy  against 
the  city  or  town;  and  whatever  right  such  purchaser  now  has 
depends  upon  the  statute.1 

A  person  who  is  named  as  grantee  in  the  collector's  deed  and 
who  paid  the  consideration  is  a  "  purchaser  "  within  the  meaning 
of  the  statute,  although  he  was  not  the  purchaser  at  the  sale 
and  was  not  entitled  to  receive  the  deed;2  but  the  owner  of  the 
property  sold  cannot  be  such  a  "  purchaser,"  for  a  sale  to  him 
amounts  to  no  more  than  a  payment  of  the  taxes.3  A  mortgagee 
may  become  a  "  purchaser  "  before  foreclosure  but  not  after- 
ward.4 

A  purchaser  who  has  conveyed  away  his  interest  in  the  prem- 
ises cannot  maintain  the  action  provided  by  this  section.  While 
the  statute  presupposes  that  the  deed  is  invalid,  the  city  or  town 
is  not  obliged  to  repay  the  money  without  obtaining  the  deed.5 

To  entitle  the  purchaser  to  maintain  the  action  the  error, 
omission  or  informality  must  be  such  a  one  as  to  legally  avoid 
the  sale;6  mere  concession  by  the  purchaser  that  he  has  no  claim 
upon  the  property  sold  is  insufficient.  The  action  however 
can  be  maintained  without  evidence  of  ouster  or  disturbance.7 

The  offer  to  surrender  must  contain  a  specific  statement  of 
the  defect  in  the  title,  and  a  statement  that  there  are  many 
errors,  omissions  and  informalities  in  the  assessment,  deed  and 
sale  of  the  property  is  insufficient.8  So  also  a  statement  naming 
every  possible  defect  that  might  render  any  tax  title  invalid 
without  specifying  the  ones  upon  which  the  purchaser  relies  is 

1  Lynde  v.  Melrose,  10  Allen  49  (1865) ;  Williams  v.  Dedham,  207  Mass. 
412    (1911). 

2  Spring  v.  Cambridge,  199  Mass.  1   (1908). 

3  Home  Savings  Bank  v.  Boston,  131   Mass.  277   (1881). 

4  Home  Savings  Bank  v.  Boston,   131   Mass.  277   (1881). 

5  Spring  v.  Cambridge,   199   Mass.   1    (1908). 

6  Lynde  v.  Maiden,  166  Mass.  244   (1896). 

7  Spring  v.  Cambridge.  199  Mass.  1   (1908). 

8  Lynde  v.  Maiden,  166  Mass.  244  (1896). 


362  Taxation  in   Massachusetts 

[G.  L.  c.  60,  §  47 
not  a  compliance  with  the  statute.9  As  there  is  no  provision 
of  law  requiring  the  collector  to  make  the  receipt  of  an  offer  to 
surrender  a  matter  of  record,  it  is  advisable  for  persons  filing 
such  an  instrument  to  adopt  some  certain  means  of  proving  the 
fact  of  filing  and  the  date  of  the  offer  in  case  it  becomes  necessary 
to  establish  these  circumstances  in  court. 

The  city  or  town  cannot  set  off  taxes  due  on  estates  which 
the  plaintiff  owned  at  the  date  of  the  writ  from  the  claim  for 
reimbursement  under  this  section.10  The  interest  under  this 
sction  should  be  computed  to  the  date  of  the  judgment.11  It 
was  formerly  at  the  rate  of  ten  per  cent,  but  it  was  reduced  to 
eight  per  cent  in  1909. 

The  remedy  against  the  city  or  town  provided  by  this  section 
of  the  statute  is  exclusive,  and  a  purchaser  of  a  defective  tax 
title  who  has  made  no  offer  to  surrender  his  deed  to  the  city  or 
town  within  two  years  of  the  sale  cannot  maintain  an  action 
against  the  collector  for  breach  of  the  warranty  that  the  sale 
was  in  all  particulars  conducted  according  to  law.12 

If  the  purchaser  of  a  defective  tax  title  seasonably  offers  to 
surrender  or  assign  it,  it  is  the  duty  of  the  collector  to  elect 
between  the  surrender  and  an  assignment  within  a  reasonable 
time,  and  failure  to  do  so  is  equivalent  to  a  refusal,  and  the 
purchaser  can  recover  from  the  city  or  town  the  amount  pro- 
vided by  statute.13 

Statement  of  Purchaser's  Residence 

Section  47.  Whoever  has  a  title  to  land  under  a  sale  for  non- 
payment of  taxes  or  other  assessment  and  is  a  resident  of  the  town 
where  such  land  lies  shall  file  with  the  treasurer  thereof  and  in  the 
registry  of  deeds  a  statement  of  his  residence  and  place  of  business, 
with  the  street  and  number,  if  any.  Such  person,  who  is  not  a  resident 
of  such  town  or  who  removes  therefrom,  shall  appoint  an  agent 
residing  therein,  or  in  the  town  where  the  tax  deed  is  recorded,  au- 
thorized to  release  such  land.  He  shall  also  file  the  statement  above 
required  in  which  he  shall  also  state  the  name  of  such  agent  and  his 
residence  and  place  of  business,  with  the  street  and  number,  if  any. 

9  Rogers  v.  Cambridge,  227  Mass.  378  (1917). 
i°  Home  Savings  Bank  v.  Boston,  131  Mass.  277  (1881). 

11  Slocum  v.  Boston,  129  Mass.  567   (1880). 

12  Williams  v.  Baker.  209  Mass.  92  (1911). 

13  Spring  v.  Cambridge,  212  Mass.  296  (1912). 


Collection  of  Local  Taxes  363 

G.L.c.  60,  §§48,49] 
Whenever  a  person  holding  a  tax  title  changes  his  residence  or  place 

of  business  or  agent,  he  shall  file  a  new  certificate.  Tender  of  pay- 
ment to,  and  service  of  process  upon,  such  agent  shall  be  a  sufficient 
tender  to,  or  service  upon,  the  holder  of  such  tax  title. 

The  repeal  of  this  section  was  recommended  by  the  com- 
mission which  prepared  the  consolidation  of  the  General  Laws, 
on  the  ground  that  by  reason  of  the  change  in  the  method  of 
establishing  tax  titles  it  had  become  obsolete;1  but  the  legislature 
declined  to  follow  this  recommendation  and  it  would  seem  that 
the  statute  may  still  be  of  some  service. 

Failure  on  the  part  of  a  purchaser  to  file  the  statement  of 
his  residence  required  by  the  statute  does  not  render  the  sale 
invalid  or  preclude  the  assessors  from  asssessing  the  land  to 
such  purchaser  for  subsequent  taxes;2  but  it  does  result  in  a 
limitation  of  the  purchaser's  rights  as  against  the  owner,  to  the 
extent  at  least  of  justifying  a  court  of  equity  in  permitting  a 
redemption  after  the  expiration  of  two  years  from  the  sale  if 
the  other  circumstances  are  such  that  justice  requires  such  action 
and  proceedings  to  foreclose  the  tax  title  have  not  been  insti- 
tuted in  the  land  court.3  So  also,  failure  of  the  purchaser  to 
file  the  statement  may,  with  other  grounds,  excuse  the  owner 
from  making  tender  to  the  purchaser.4 

Purchase  by  the  City  or  Town 

Section  48.  If  at  the  time  and  place  of  sale  no  person  bids 
for  the  land  offered  for  sale  an  amount  equal  to  the  tax  and  charges, 
and  if  the  sale  has  been  adjourned  one  or  more  times,  the  collector 
shall  then  and  there  make  public  declaration  of  the  fact;  and, 
if  no  bid  equal  to  the  tax  and  charges  is  then  made,  he  shall  give 
public  notice  that  he  purchases  for  the  town  by  which  the  tax  is 
assessed  said  land  as  offered  for  sale  at  the  amount  of  the  tax  and 
the  charges  and  expenses  of  the  levy  and  sale,  which  amount  shall 
be  allowed  him  in  his  settlement  with  such  town. 

Section  49.  If  the  purchaser  fails  to  pay  the  collector  within 
twenty  days  after  the  sale  the  amount  bid  by  him,  the  sale  shall  be 

1  Preliminary  Report,  p.  115. 

2  Conners  v.  Lowell,  209  Mass.  Ill   (1911). 

3  Davidson  v.  Stafford,  210  Mass.  145  (1911) ;  Glazier  v.  Everett,  224 
Mass.   184   (1916). 

*  McNeil  v.  O'Brien,  204  Mass.  594  (1910). 


364  Taxation   in    Massachusetts 

[G.  L.  c.  60,  §  50 
void,  and  the  town  shall  be  deemed  to  be  the  purchaser  of  the  land, 

under  the  preceding  section. 

Section  forty-eight  was  modified  in  the  enactment  of  the 
General  Laws  so  as  to  make  it  clear  that  the  collector  cannot 
bid  in  the  land  for  less  than  the  tax  and  charges.1  The  ad- 
journment of  the  sale  which  justifies  the  collector  in  purchasing 
the  land  for  the  town  must  apparently  be  to  a  different  day; 
an  adjournment  for  a  "  spell "  on  the  same  day  is  insufficient.2 

If  the  purchaser  at  the  tax  sale  does  not  pay  the  collector 
within  the  specified  time  the  collector  has  no  option  but  must 
make  a  deed  to  the  city  or  town.  A  deed  to  the  purchaser  under 
such  circumstances  is  void.3 

To  establish  a  valid  tax  title  in  an  individual  purchaser  it 
must  appear  affirmatively  that  he  paid  the  amount  bid  within 
twenty  days  of  the  sale ;  but  the  dates  of  execution  and  acknowl- 
edgment of  the  tax  deeds  may  in  themselves  warrant  an  inference 
that  such  payment  was  made.4 

Recitals  in  Deed  to  Town 

Section  50.  If  the  town  becomes  the  purchaser,  the  deed  to  it, 
in  addition  to  the  statements  required  by  section  forty-five,  shall 
set  forth  the  fact  that  no  sufficient  bid  was  made  at  the  sale  or  that 
the  purchaser  failed  to  pay  the  amount  bid,  as  the  case  may  be,  and 
shall  confer  upon  such  town  the  rights  and  duties  of  an  individual 
purchaser. 

The  deed  to  a  city  or  town  is  void  if  it  does  not  contain 
the  statements  required  by  law  in  deeds  from  the  collector  to 
individual  purchasers.1  By  a  deed  from  a  collector  to  a  city  or 
town  the  municipality  takes  the  same  title  as  would  an  indi- 
vidual purchaser  at  a  tax  sale,  and  it  was  formerly  held  that 
after  the  sale  and  deed  the  former  owner  had  no  right  of  posses- 
sion against  the  municipality.2    Under  the  present  law  however 

i  St.  1918.  c.  257,  §  50. 

2  Oakham  v.  Hall,  112  Mass.  535  (1873).  When  that  case  was  decided 
however  adjournments  could  lawfully  be  made  only  from  day  to  day. 

3  Holt  v.   Weld,    140    Mass.   578    (1886). 

4  Welsh  v.  Briggs,  204  Mass.  540   (1910). 

1  Harrington  v.  Worcester,  6  Allen  576  (1863). 

2  Coughlin  v.  Gray,  131  Mass.  57  (1881). 


Collection  of  Local  Taxes  365 

G.L.c.  60,  §§51-53  inc.] 

the  city  or  town  would  have  no  right  of  possession  until  after 
the  expiration  of  two  years  from  the  sale.3 

Sale  of  Parcels  of  Small  Value 

Section  51.  If  unimproved  and  unoccupied  land  does  not  exceed 
four  thousand  square  feet  in  area,  or  is  laid  out  in  lots  or  parcels 
no  one  of  which  exceeds  such  area,  and  the  taxes  unpaid  for  any  one 
year  do  not  exceed  fifty  cents  on  such  land,  or  on  any  such  lot  or 
parcel  thereof,  the  collector  may  give  notice  of  the  sale  by  publication 
of  an  advertisement  stating  the  name  of  the  owner  of  record  of  each 
lot  on  April  first  of  the  year  of  assessment,  the  tax  due  thereon 
and  the  number  of  such  lot  on  a  street,  way  or  plan,  without  further 
description  thereof.  The  collector  may  convey  in  one  deed  to  the 
same  purchaser  or  convey  to  the  town  any  number  of  the  lots  so 
advertised  and  sold,  and  said  deed  shall  state  the  name  of  said  owner 
of  record  of  each  lot  conveyed  therein,  on  April  first  of  said  year, 
the  amount  of  the  taxes  and  costs  due  for  each  lot,  and  the  number 
on  the  street,  way  or  plan  of  each  lot  respectively,  and  need  contain 
no  further  description  of  the  lot,  owner  or  amount  due.  The  cost 
of  the  sale  shall  be  apportioned  equally  among  all  the  lots  sold,  and 
the  cost  of  the  deed  shall  be  apportioned  equally  among  all  the  lots 
conveyed  thereby. 

Management  of  Lands  Bought  by  Town 

Section  52.  Deeds  to  a  city  shall  be  placed  in  the  custody  of 
its  collector,  and  to  a  town  in  the  custody  of  its  treasurer.  Cities 
and  towns  may  make  regulations  for  the  possession,  management 
and  sale  of  such  land  and  for  the  assignment  of  tax  titles,  not  incon- 
sistent with  law  or  with  the  right  of  redemption. 

Taking  of  Land  for  Non-payment  of  Taxes 

Section  53.  If  a  tax  on  land  is  not  paid  within  fourteen  days 
after  demand  therefor  and  remains  unpaid  at  the  date  of  taking,  the 
collector  may  take  such  land  for  the  town,  first  giving  three  weeks'  no- 
tice of  his  intention  to  exercise  such  power  of  taking,  which  notice  may 
be  served  in  the  manner  required  by  law  for  the  service  of  subpoenas 
on  witnesses  in  civil  cases  or  may  be  published,  and  shall  conform  to 

3  G.  L.  c.  60,  §  45,  supra  page  357. 


366  Taxation   in    Massachusetts 

[G.L.c.  60,  §§54-56  inc. 
the  requirements  of  section  forty.  He  may  also  post  a  similar  notice 
under  section  forty-two. 

Section  54.  The  instrument  of  taking  shall  be  under  the  hand 
and  seal  of  the  collector  and  shall  contain  a  statement  of  the  cause 
of  taking,  a  substantially  accurate  description  of  each  parcel  of  land 
taken,  the  name  of  the  person  to  whom  the  same  was  assessed,  the 
amount  of  the  tax  thereon,  and  the  incidental  expenses  and  costs  to 
the  date  of  taking,  and  shall  be  recorded  in  the  registry  of  deeds; 
and  title  to  the  land  so  taken  shall  thereupon  vest  in  the  town,  subject 
to  the  right  of  redemption.  Such  title,  and  also  the  title  conveyed 
by  a  deed  or  taking  under  sections  seventy-nine  to  eighty-one,  inclu- 
sive, shall,  until  redemption  or  until  the  right  of  redemption  is  fore- 
closed as  hereinafter  provided,  be  held  as  security  for  the  repayment 
of  said  taxes  with  all  intervening  costs,  terms  of  redemption  and 
charges,  with  interest  thereon. 

Section  55.  If  land  has  been  so  taken  there  shall  be  allowed  to 
the  collector  and  added  to  the  tax  the  charges  and  fees  fixed  by  section 
fifteen. 

The  taking  of  land  by  a  city  or  town  for  the  non-payment  of 
taxes  as  an  alternative  method  of  collection  was  introduced  in 
1878,  and  the  statutes  which  authorize  this  procedure  have  re- 
mained in  force  without  much  modification,  except  to  conform 
to  the  change  in  the  character  of  title  acquired  by  a  sale  from 
an  absolute  title  to  security  becoming  absolute  on  foreclosure 
which  took  place  in  1915.1  The  same  accuracy  is  required  in 
proceedings  for  the  taking  of  land  for  non-payment  of  taxes 
as  in  the  case  of  sales  from  the  same  cause.2 

Naming  of  One  Record  Owner  Sufficient 

Section  56.  The  assessment,  sale  or  taking  may  be  made  in 
the  name  of  one  or  more  of  the  record  owners  at  the  date  of  assessment, 
and  if  so  made,  shall,  subject  to  section  forty-three,  be  deemed  to 
be  in  the  name  of  the  owner  thereof.  Every  such  sale  or  taking  shall 
be  of  the  whole  estate  and  not  of  the  undivided  interest  of  any  joint 
owner  thereof. 

It  is  to  be  noted  that  this  section,  in  spite  of  its  collocation 
in  the  statutes,  applies  to  the  assessment  as  well  as  to  the  col- 

i  St.  1915,  c.  237,  §  2. 

2  Hurd   v.    Melrose.    191    Mass.    576    (1906). 


Collection  of  Local  Taxes  367 

G.  L.  c.  60,  §  57] 

lection  of  taxes,  and  must  be  construed  in  connection  with  section 
eleven  of  chapter  fifty-nine.1  Under  the  tax  statutes,  taken  as 
an  entire  system,  when  land  is  owned  by  tenants  in  common, 
the  assessment  of  a  tax  on  the  undivided  interest  of  one  of  the 
tenants  in  common  is  invalid;2  but  an  assessment  of  the  tax 
on  the  entire  parcel  may  be  made  on  one  of  the  tenants  in  com- 
mon;3 and  when  there  are  various  easements,  estates  and  inter- 
ests in  or  on  a  parcel  of  land,  an  assessment  to  the  general 
owner  is  sufficient.4  The  statute  however  cannot  be  construed 
to  authorize  the  assessment  of  a  parcel  of  land  to  a  person  who 
is  not  an  occupant  and  whose  interest  in  the  land  is  not  of 
record.5 

Under  the  law  as  it  stood  before  1915,  the  statute  authorized 
the  extinction  of  the  record  title  of  a  person  to  an  interest  in 
land  although  he  was  not  assessed  and  no  demand  was  made 
upon  him,6  but  under  the  present  system  the  holders  of  all 
interests  in  the  land  are  notified  before  the  right  of  redemption 
is  finally  lost.7 

Affidavit  of  Collector 

Section  57.  The  affidavit  of  the  collector,  deputy  collector  or 
disinterested  person  reciting  the  proceedings  required  by  law  in  the 
sale  of  land  for  taxes,  with  copies  of  the  advertisement  and  notices 
annexed  thereto,  recorded  within  three  months  after  such  sale  in  the 
registry  of  deeds,  shall  be  competent  evidence  of  demand,  notice  and 
service. 

This  statute  does  not  require  an  affidavit,  but  makes  it 
competent  evidence.  That  the  proceedings  required  by  law 
were  faithfully  carried  out  may  be  proved  by  any  other  com- 
petent evidence,  if  the  affidavit  given  effect  by  this  section 
was  not  filed  or  turned  out  to  be  insufficient.1 

1  Supra  page  226. 

*  Curtiss  v.  Sheffield,  213  Mass.  239   (1913). 

3  McLoud  v.  Mackie,  175  Mass.  355  (1900). 

4  Hunt  v.  Boston,  183  Mass.  303   (1903). 

5  Kerslake  v.  Cummings,  180  Mass.  65  (1901). 

6  McLoud  v.  Mackie,  175  Mass.  355  (1900);  Hunt  v.  Boston,  183  Mass. 
303    (1903). 

7  G.  L.  c.  60,  §  66,  infra  page  380. 

1  Southworth  v.  Edmands,  152  Mass.  203  (1890). 


368  Taxation   in   Massachusetts 

[G.  L.  c.  60,  §§  58,  59 

Rights  of  Mortgagors  and  Mortgagees  Against  Each 

Other 

Section  58.  If  proceedings  have  been  commenced  for  the  taking 
or  sale  of  land  for  a  tax  assessed  thereon,  or  if  the  owner  of  land  has 
neglected  to  pay  such  tax  within  the  year  for  which  it  is  assessed, 
the  holder  of  a  mortgage  thereon  may  pay  such  tax,  charges  and 
expenses  to  the  collector;  and  the  amount  so  paid  may  be  added  to 
the  mortgage  debt. 

Section  59.  If  a  tax  on  land  is  assessed  to  a  mortgagor  and  mort- 
gagee separately,  any  part  thereof  remaining  unpaid  on  January 
first  following  its  assessment  may  be  paid  by  either  party.  If  a  mort- 
gagee pays  a  tax,  interest  or  costs  thereon  which  by  law  or  by  the 
terms  of  the  mortgage  was  payable  by  the  mortgagor,  the  amount 
so  paid  shall  be  added  to  the  mortgage  debt.  If  it  is  by  law  or  by 
the  terms  of  the  mortgage  payable  by  the  mortgagee,  and  is  paid  by 
the  mortgagor,  the  amount  so  paid  shall  be  deducted  from  the  mort- 
gage debt  unless  the  parties  have,  in  writing,  otherwise  agreed. 

For  the  purposes  of  taxation  a  mortgagor  of  real  estate  is 
taken  to  be  the  owner  as  long  as  he  remains  in  possession,  and 
prior  to  1881  the  mortgagor  was  assessed  for  the  full  value  of 
the  land  and  the  mortgagee  for  the  full  value  of  the  mortgage 
deb't  as  personal  property.  In  1881  provision  was  made  for  the 
assessment  of  the  mortgage  to  the  mortgagee  and  of  the  equity 
of  redemption  to  the  mortgagor.  In  the  following  year  it  was 
provided  that  the  separate  assessment  need  not  be  made  if  no 
statement  of  the  amount  of  the  mortgage  was  filed  with  the 
assessors  and  since  then  mortgaged  land  has  been  generally 
assessed  to  the  mortgagor  while  in  possession  and  the  mort- 
gagee's interest  has  not  been  assessed.1  In  the  absence  of  special 
provision  in  the  mortgage  the  obligation  to  pay  the  tax  assessed 
in  such  manner  rests  upon  the  mortgagor  and  the  statute 
printed  first  at  the  head  of  this  section  establishes  a  way  for 
the  mortgagee  to  protect  his  interest  in  the  land  and  enforce 
upon  the  mortgagor  the  obligation  of  ultimately  paying  the  tax. 
In  the  absence  of  an  agreement  by  the  mortgagor  to  pay  the  tax, 
if  the  mortgagee  was  obliged  to  pay  a  tax  assessed  on  the 
mortgagor  to  protect  his  security  it  is  very  doubtful  if  an  action 

i  See  G.  L.  c.  59,  §  §  11-14,  inc.,  supra   pages  226  to  232  inc. 


Collection  of  Local  Taxes  369 

G.L.c.  60,  §59] 

would  lie  against  the  mortgagor  to  recover  the  amount  so  paid;2 
and  at  any  rate  a  personal  judgment  against  a  mortgagor  who 
failed  to  pay  the  taxes  on  the  mortgaged  property  would  in  most 
cases  be  of  little  value,  so  that  the  statutory  method  is  much 
more  effective. 

Section  fifty-eight,  in  the  form  in  which  it  stood  prior  to 
the  enactment  of  the  General  Laws,  was  however  of  limited 
value  to  a  mortgagee,  because  it  gave  the  right  to  the  mortgagee 
to  pay  the  taxes  and  add  the  amount  paid  to  the  mortgage  debt 
only  when  the  mortgagor  failed  to  pay  within  three  months 
after  demand,  and  demand  had  been  made  upon  the  mortgagee 
by  the  collector.  In  the  General  Laws  the  rights  of  the  mortgagee 
are  much  better  protected. 

In  many  instances  mortgagees  protect  themselves  with  respect 
to  taxes  by  conditions  in  the  mortgage.  Thus  it  is  customary 
to  incorporate  in  a  mortgage  as  one  of  its  essential  conditions 
a  provision  that  the  mortgagor  shall  pay  all  taxes  assessed  on 
the  mortgaged  property.  It  was  held  that  the  statute  of  1881 
did  not  affect  the  conditions  of  existing  mortgages 3  and  that 
with  regard  to  mortgages  given  since  its  enactment,  the  condi- 
tion of  the  mortgage  was  valid  and  the  statutory  remedies  for 
the  enforcement  of  the  mortgagor's  obligation  to  pay  taxes 
were  not  exclusive  of  rights  secured  by  the  mortgage  itself.4  In 
other  words,  the  provisions  of  section  fifty-eight  point  out  a 
plain  method  of  protecting  his  interest  which  a  mortgagee  can 
pursue  if  he  desires ;  but  the  remedy  is  cumulative ;  the  statute 
was  intended  for  the  greater  security  of  the  mortgagee  and  can- 
not be  construed  to  take  away  or  limit  his  right  to  protect  his 
interest  in  any  other  manner. 

When  a  mortgage  is  conditioned  upon  the  payment  of  taxes 
by  the  mortgagor,  the  tax  should  be  paid  before  interest  upon 
it  begins  to  run,5  and  if  it  is  not  so  paid,  the  mortgagee  may 

2  Swan  v.  Emerson,  129  Mass.  289  (1880). 
s  Hammond  v.  Lovell,  136  Mass.  184  (1883). 

4  Thus  a  mortgagee  may  buy  in  the  property  at  a  tax  sale,  Home  Savings 
Bank  v.  Boston,  131  Mass.  277  (1881).  or  foreclose  for  non-payment  of  the  tax, 
Stevens  v.  Cohen,  170  Mass.  551  (1898),  or  follow  the  property  in  equity  if  it 
is  turned  into  money  with  the  tax  added  to  the  mortgage  debt,  Worcester  v. 
Boston,  179  Mass.  41  (1901),  or  be  subrogated  in  equity,  upon  payment  of 
the  tax,  to  the  collector's  lien  or  to  his  rights  against  the  personal  property 
of  the  mortgagor  in  the  hands  of  a  receiver,  Equitable  Trust  Co.  v.  Kelsey, 
209  Mass.  416   (1911). 

5  Silva   v.  Turner,   166   Mass.  407    (1896).     When  a   mortgagor   agrees  to 


370  Taxation   in   Massachusetts 

[G.  L.  c.  60,  §  60 
proceed  to  foreclose  without  waiting  for  the  collector  to  begin 
to  levy  on  the  land.6  Under  such  a  mortgage  the  mortgagee  can 
add  the  amount  paid  for  taxes,  or  paid  to  redeem  the  land  from 
a  tax  sale,  to  the  amount  of  the  mortgage  in  proceedings  of 
every  description  to  enforce  his  rights  in  the  mortgage;7  but  if 
he  sells  the  land  under  a  power  in  the  mortgage  subject  to  out- 
standing tax  titles  he  cannot  deduct  from  the  proceeds  money 
subsequently  paid  for  redeeming  the  tax  titles.8  A  mortgagee 
cannot,  by  purchasing  the  mortgaged  land  at  a  tax  sale,  defeat 
the  right  of  the  mortgagor  to  redeem  the  land  from  the  mortgage 
upon  payment  of  the  amount  due  thereon,  which  amount  would 
of  course  include  the  sum  paid  by  the  mortgagee  at  the  tax  sale.9 
As  between  successive  mortgagees,  a  senior  mortgagee  who 
has  been  obliged  to  pay  a  tax  assessed  to  a  junior  mortgagee 
while  the  latter  was  in  possession  cannot  recover  the  sum  so 
paid  from  the  person  assessed;10  and  a  junior  mortgagee  who 
pays  the  tax  to  prevent  foreclosure  by  a  senior  mortgagee  cannot 
require  the  senior  mortgagee  to  repay  him  the  sum  so  paid  if 
the  senior  mortgagee  forecloses  the  mortgage  on  account  of 
another  breach  of  condition  by  the  mortgagor. 


ii 


Payment  of  Taxes  by  Person  Other  than  the  Owner 

Section  60.  If  a  person  other  than  the  owner  of  the  fee  rightfully 
pays  the  taxes  assessed  on  land  to  the  collector  or  treasurer,  before 
a  taking  or  sale,  the  collector  or  treasurer  shall  give  him  a  certificate 
of  such  payment  stating  the  name  of  the  person  to  whom  the  land  is 
taxed,  of  the  person  paying  the  tax,  and  a  substantially  accurate 
description  of  the  land.  Such  certificate  being  recorded  in  the  registry 
of  deeds  within  thirty  days  from  its  date  shall  be  notice  to  all  persons 
of  such  payment  and  of  the  lien  therefor.  A  person  whose  tax  is 
paid  by  another  shall  upon  repaying  the  same  have  the  same  right 


pay  the  tax,  it  is  due  at  least  by  November  1,  in  Boston,  Silva  v.  Turner,  166 
Mass.  407  (1896). 

6  Stevens  v.  Cohen,  170  Mass.  551   (1898). 

»  Stevens  v.  Cohen,  170  Mass.  551  (1898);  Worcester  v.  Boston,  179  Mass. 
41   (1901);  Equitable  Trust  Co.  v.  Kelsey,  209  Mass.  416  (1911). 

8  Skilton  v.  Roberts,  129   Mass.  306   (1880). 

9  Walsh  v.  Wilson,  130  Mass.  124  (1881);  Ccughlin  v.  Gray,  131  Mass.  56 
(1881). 

10  Swan  v.   Emerson,    129    Mass.   289    (1880). 

11  Pearmain  v.  Massachusetts  Hospital  Life  Insurance  Co.,  206  Mass.  377 
(1910). 


Collection  of  Local  Taxes  371 

G.  L.  c.  60,  §  60] 

to  recover  it  from  the  town,  if  illegally  assessed,  which  he  would  have 

had  if  the  tax  had  been  paid  by  him  under  written  protest. 

This  subject  divides  itself  naturally  into  two  parts.  (1) 
When  one  is  obliged  to  pay  taxes  assessed  on  another  to  save 
his  own  property  from  levy  and  sale.  (2)  When  one  by  mistake 
or  by  the  dishonest  act  of  an  agent  pays  the  tax  on  another's 
property. 

In  the  first  case,  so  far  as  the  rights  of  the  parties  at  common 
law  are  concerned,  it  is  not  sufficient  that  the  property  is  assessed 
to  another  and  that  as  between  the  collector  and  the  parties 
the  other  party  is  the  one  primarily  liable  for  the  tax.  One 
who  takes  a  quitclaim  deed  of  property  upon  which  a  tax  is 
assessed  to  the  vendor  without  covenants  against  incumbrances 
made  or  suffered  by  the  vendor  and  pays  the  tax  to  avoid  a 
sale  by  the  collector  cannot  call  upon  the  vendor  to  reimburse 
him,1  and  a  senior  mortgagee  who  after  foreclosure  is  obliged  to 
pay  a  tax,  assessed  on  the  property  to  a  junior  mortgagee  while 
the  latter  was  in  possession,  cannot  recover  the  amount  of  the 
tax  from  the  junior  mortgagee.2  When  however  the  parties 
have  agreed  between  themselves  that  one  of  them  is  to  pay  the 
tax  on  the  property,  and  the  one  who  has  agreed  to  pay  the  tax 
fails  to  pay  it,  and  the  other  party  is  obliged  to  pay  the  tax  to 
save  his  interest  in  the  property  from  being  wiped  out  by  the 
sale  of  the  land  for  non-payment  of  the  tax,  he  can  recover  the 
amount  so  paid  in  an  action  at  law  against  the  party  who  agreed 
to  pay  the  tax.3  He  is  also  entitled  by  proceedings  in  equity 
to  be  subrogated  to  the  rights  of  the  collector  against  the  land, 
or  if  the  other  party  is  insolvent,  to  the  collector's  right  to  prove 
the  tax  against  such  party  as  a  preferred  claim.4 

When  there  are  different  estates  and  interests  in  a  parcel  of 
real  estate  and  there  is  no  express  agreement  among  the  holders 
of  the  different  interests  in  regard  to  the  payment  or  apportion- 
ment of  the  tax,  and  the  general  owner  or  the  occupant  to  whom 
the  tax  on  the  property  is  assessed  does  not  pay  the  tax  and  the 
collector  is  about  to  levy  on  the  land,  the  holder  of  one  of  the 
other  estates  or  interests  may  be  obliged  to  pay  the  tax  to  protect 

1  Swan  v.  Emerson,  129  Mass.  289   (1880). 

2  Swan  v.  Emerson,  129  Mass.  289   (1880). 

3  Phinney  v.  Foster.  189  Mass.  182,  188  (1905). 

4  Equitable  Trust  Co.  v.  Kelsey,  209   Mass.  416    (1911). 


372  Taxation    in    Massachusetts 

[G.  L.  c.  60,  §  60 

his  interest.  In  such  a  case  he  should  in  justice  be  allowed  to 
call  upon  the  holders  of  the  other  interests  for  reimbursement 
or  contribution,5  and  as  the  failure  to  pay  the  tax  would  gen- 
erally indicate  impecuniosity  on  the  part  of  the  person  assessed, 
in  most  cases  the  rights  of  the  person  paying  the  tax  would  not 
be  fully  protected  without  some  greater  security  than  a  mere 
personal  right  of  action  against  the  delinquent.  Accordingly 
we  find  the  matter  regulated  by  statute;  a  tenant  may  sue  his 
landlord  or  withhold  rent;6  a  mortgagee  may  add  the  sum  paid 
to  the  mortgage;7  a  co-tenant  in  addition  to  his  general  right 
to  sue  for  contribution  is  given  a  lien  on  the  land.8  In  1902 
provision  was  made  which  is  now  contained  in  section  sixty  that 
if  any  person  other  than  the  owner  of  the  fee  rightfully  paid 
a  tax  on  land  —  that  is  anyone  having  an  interest  in  the  land 
other  than  the  general  ownership  —  he  was  entitled  to  receive 
and  record  a  certificate  of  such  payment  which  should  be  "  notice 
to  all  persons  of  such  payment  and  of  the  lien  therefor."  This 
statute  seems  on  its  face  to  recognize  the  existence  of  a  lien  in 
all  cases  of  payment  of  a  tax  by  the  holder  of  an  interest  other 
than  the  fee,  as  well  as  in  those  specifically  provided  for;  but  it 
was  probably  not  intended  to  establish  a  lien  in  cases  other  than 
those  created  by  other  provisions  of  law,  and  its  effect  is  doubt- 
less only  to  provide  a  means  for  recording  notice  of  liens  whose 
establishment  was  not  otherwise  provided  for.9  In  any  event 
it  does  not  cover  the  case  of  a  remainderman  who  is  obliged 
to  pay  the  tax  upon  the  default  of  a  life-tenant,  for  the  remain- 
derman is  himself  the  owner  of  the  fee ;  but  on  general  equitable 
principles,  if  a  remainderman  pays  off  an  encumbrance  he  has 
an  equitable  lien  on  the  land  for  contribution.10 

If  the  land  is  actually  sold  for  non-payment  of  the  tax,  the 
holder  of  any  interest  in  the  land  is  permitted  to  redeem;11  and 
although  the  statutes  make  no  provision  for  adjusting  the  rights 

5  For  the  general  principle  on  which  this  right  is  based,  see  Amory  v. 
Lowell,  1  Allen  504  (1861);  Davis  v.  Bay  State  League,  158  Mass.  434   (1893). 

6  G.  L.  c.  59,  §   15,  supra  page  233. 

7  G.  L.  c.  60,  §  §  58,  59,  supra  page  368. 

8  G.  L.  c.  60,  §§  85,  86,  infra  page  391.  See  also  Foote  v.  Cotting,  195 
Mass.  55,  63  (1907).  For  the  right  of  an  heir  who  has  paid  a  tax  assessed  on  the 
undivided  real  estate  of  a  deceased  person  to  contribution  see  G.  L.  c.  59, 
§  16,  supra  page  236. 

9  See  decision  in  Salisbury  Beach  Associates  v.  Behan,  Land  Court  (1920). 

10  Amory  v.  Lowell,  1  Allen  504  (1861). 

11  G.  L.  c.  60,   §  62,  infra,  page  374. 


Collection  of  Local  Taxes  373 

G  L.c.  60,  §61] 

of  the  different  owners  in  such  a  case,  the  one  who  pays  the 
money  for  redemption  is  fully  protected.  He  is  entitled  to  hold 
the  tax  title  for  his  own  benefit  until  the  persons  who  should 
have  paid  all  or  part  of  the  tax  reimburse  him  for  a  proportion- 
ate part  of  his  expenditure.12 

It  is  well  settled  that  when  one  who  has  no  interest  in  land 
assessed  for  taxes  and  is  under  no  obligation  to  pay  the  taxes 
thereon,  without  the  request  of  the  owner  pays  such  a  tax, 
either  from  mistake  or  through  the  dishonest  act  of  his  agent, 
he  cannot  maintain  an  action  at  law  against  the  owner  of  the  land 
for  the  amount  so  paid.13  This  rule  rests  upon  well  established 
principles  of  law,  that  one  is  entitled  to  choose  his  own  cred- 
itors, and  that  one  who  voluntarily  pays  another's  debts  cannot 
recover  the  money  so  paid  from  the  debtor. 

In  equity  however  there  may  be  a  different  rule.  In  a  recent 
case  it  was  held,  not  without  emphatic  dissent,  that  when  the 
same  individual  was  trustee  of  two  trusts  and  used  the  money 
of  one  trust  to  pay  taxes  on  a  parcel  of  land  belonging  to  the 
other  trust,  in  a  suit  in  equity  brought  by  the  succeeding  trustee 
of  the  first  trust  against  the  succeeding  trustee  of  the  second, 
the  plaintiff  was  entitled  to  a  charge  on  the  land  for  the  amount 
of  the  tax  paid,  or  to  a  decree  against  the  defendant  for  the 
repayment  of  the  money.14  How  far  the  principle  of  this  de- 
cision would  be  extended  beyond  the  peculiar  facts  of  the  case 
remains  however  open  to  question. 

Collection  of  Taxes  Subsequent  to  Sale  or  Taking 

Section  61.  Whenever  a  town  shall  have  purchased  or  taken 
real  estate  for  payment  of  taxes  the  lien  of  the  town  on  such  real 
estate  for  all  taxes  assessed  subsequently  to  the  assessment  for  pay- 
ment of  which  the  estate  was  purchased  or  taken  shall  continue,  and 
it  shall  be  unnecessary  for  the  town  to  take  or  sell  said  real  estate 
for  non-payment  of  said  subsequent  taxes,  costs  and  interest;  and 
on  either  redemption  from,  or  foreclosure  of,  the  right  of  redemption 

W  Hurley  v.  Hurley,  148  Mass.  444  (1889). 

13  Massachusetts  Mutual  Life  Insurance  Co.  v.  Green,  185  Mass.  306  (1904) 
(mistake);  Foote  v.  Cotting  195  Mass.  55  (1907)  (dishonest  act  of  agent).  One 
who  is  wrongfully  in  possession  of  land  cannot  when  he  is  ousted  on  writ  of 
entry  charge  the  rightful  owner  for  taxes  paid.  Curtis  v.  Gay,  15  Gray  36 
(1860). 

14  Newell  v.  Hadley,  206  Mass.  335  (1910) ;  Bremer  v.  Williams,  210  Mass. 
256  (1911). 


374  Taxation    in   Massachusetts 

[G.  L.  c.  60,  §  62 
under  such  taking  or  purchase,  said  subsequent  taxes,  costs  and  inter- 
est shall  be  paid  to  the  town,  and  the  payment  shall  be  made  a  part 
of  the  terms  of  redemption. 

In  1918  it  was  held  that  when  a  city  or  town  becomes  a 
purchaser  at  a  tax  sale  of  land  sold  by  its  collector  of  taxes,  it 
receives  a  title  subject  to  the  later  and  paramount  lien  that  may 
arise  from  taxes  assessed  after  those  for  the  collection  of  which 
the  sale  was  made.1  To  avoid  the  effect  of  this  decision,  the 
foregoing  statute  was  enacted  in  the  following  year.2 

Redemption  from  Tax  Sale 

Section  62.  Any  person  having  an  interest  in  land  taken  or 
sold  for  non-payment  of  taxes,  including  those  assessed  under  sections 
twelve,  thirteen  and  fourteen  of  chapter  fifty-nine,  or  his  heirs  or 
assigns,  may,  within  two  years  after  the  taking  or  sale,  redeem  the 
same  by  paying  or  tendering  to  the  collector,  if  the  estate  has  been 
taken  or  purchased  by  the  town,  the  amount  of  the  tax,  all  inter- 
vening taxes,  charges  and  fees,  and  interest  on  the  whole  at  the  rate 
of  eight  per  cent  per  annum;  or  by  paying  or  tendering  to  the  pur- 
chaser, or  his  legal  representatives  or  assigns,  the  original  sum  and 
intervening  taxes  paid  by  him  and  interest  on  the  whole  at  said 
rate.  In  each  case  he  shall  also  pay  for  examination  of.  title  and  a 
deed  of  release  not  more  than  three  dollars  in  the  aggregate ;  and  in 
addition  thereto  the  actual  cost  of  recording  the  tax  deed  or  evidence 
of  taking.  He  may  redeem  the  land  by  paying  to  the  collector 
the  sum  which  he  would  be  required  to  pay  to  the  purchaser,  with 
one  dollar  additional. 

No  person  shall  knowingly  collect  or  attempt  to  collect  for  the 
redemption  of  any  such  land  a  sum  of  money  greater  than  that 
authorized  by  this  section. 

This  section  of  the  statute  brings  out  clearly  the  fact  that 
the  real  purpose  of  a  tax  sale  is  to  enable  the  city  or  town  to 
collect  quickly  the  money  needed  to  perform  its  many  public 
functions  and  to  throw  upon  the  purchaser  the  duty,  accom- 
panied by  suitable  pecuniary  rewards,  of  making  the  unwilling 
and  delinquent  taxpayer  eventually  yield  up  the  amount  of  the 

1  Chadwick  v.  Cambridge,  230   Mass.  580    (1918). 

2  St.  1919,  c.  263. 


Collection  of  Local  Taxes  375 

G.  L.  c.  60,  §  62] 

tax  by  the  imposition  of  increasing  pecuniary  penalties  finally 
amounting  to  forfeiture;  in  other  words  that  a  tax  title  in  spite 
of  its  paramount  nature  is,  until  the  right  of  redemption  is 
finally  lost,  in  reality  a  lien,  and  that  the  holder  of  the  right  of 
redemption  is  really  the  owner  of  the  land. 

Prior  to  the  enactment  of  the  General  Laws  of  1921  the 
right  to  redeem  was  in  terms  granted  only  to  the  owner  of  the 
land;  but  the  decisions  recognized  that  an  owner  within  the 
meaning  of  the  statute  was  not  necessarily  the  true  owner,  the 
holder  of  a  perfect  title,  or  even  the  owner  of  the  fee;  but  that 
the  term  included  anyone  having  a  legal  interest  in  the  land  or 
in  possession  under  claim  of  ownership.1  In  the  consolidation  of 
the  General  Laws,  the  phraseology  of  the  section  was  modified 
to  conform  to  the  interpretation  put  upon  it  by  the  court.2 

The  right  to  redeem  depends  upon  ownership  of  an  interest 
in  the  land  at  the  time  the  redemption  is  sought,  rather  than 
at  the  time  the  la.nd  was  assessed,3  and  a  person  whose  title  is 
extinguished  or  transferred  after  the  sale  is  not  subsequently 
entitled  to  redeem.4  The  right  of  redemption,  or  ownership 
subject  to  a  tax  title,  is  treated  by  the  law  as  an  interest  in  land 
which  may  be  conveyed  or  devised  and  which  descends  in  the 
same  manner  as  other  property.5 

The  effect  of  payment  or  tender  of  the  amount  due,  to  the 
purchaser  or  his  legal  representatives  or  assigns,  by  a  person  en- 
titled to  redeem  the  land  is  at  once  as  between  the  parties  to 
defeat  the  legal  estate  of  the  purchaser  and  to  leave  the  title 
where  it  would  have  been  if  the  sale  had  never  taken  place.8 
If  the  holder  of  the  tax  title  intentionally  eludes  the  owner  and 
thus  prevents  tender  being  made,  tender  is  excused,  and  the  tax 

1  Rogers  v.  Rutter,  11  Gray  410  (1858) ;  Hillis  v.  O'Keefe,  189  Mass.  139 
(1905);  Rogers  v.  Lynn,  200  Mass.  354  (1909);  Union  Trust  Co.  v.  Reed,  213 
Mass.   199    (1912). 

2  St.  1918,  c.  257,  §  53.  At  the  same  time  a  provision  that  the  redeeming 
owner  should  be  credited  with  rents  and  profits  received  by  the  purchaser  was 
stricken  out  as  no  longer  applicable  as  the  purchaser  cannot  now  take  possession 
until  the  two  year  period  of  redemption  has  expired. 

3  Davidson  v.  Stafford,  210   Mass.   145   (1911). 

4  Da  Silva  v.  Turner,  166  Mass.  407  (1896). 

5  O'Day  v.  Bowker,  143  Mass.  59,  62  (1886).  It  was  however  held  prior 
to  1915  that  a  right  of  redemption  was  not  an  interest  in  real  estate  attachable 
in  an  action  at  law.  Adams  v.  Mills,  126  Mass.  278  (1879).  At  present  as  the 
tax  title  is  only  security  the  opposite  result  might  be  reached. 

6  Rand  v.  Robinson,  11  Cush.  289  (1853);  Perry  v.  Lancy,  179  Mass.  183 
(1901). 


376  Taxation    in    Massachusetts 

[G.  L.  c.  60,  §  62 
title  is  defeated  to  the  same  extent  as  if  tender  had  been  actually 
made.7 

When  the  purchaser  of  a  tax  title  conveys  it  to  a  third  party 
before  the  owner  undertakes  to  redeem,  the  owner,  if  he  has 
notice  of  the  conveyance,  should  make  his  tender  to  the  grantee 
of  the  purchaser.8  It  was  formerly  held  that  if  the  owner  re- 
mained in  possession  tender  should  be  made  to  the  purchaser 
himself,  notwithstanding  a  duly  recorded  deed  which  the  pur- 
chaser had  made  to  a  third  party  while  disseised.9  Since  1891 
however  title  can  pass  notwithstanding  the  disseisin  of  the 
grantor,10  and  it  would  seem  that  tender  should  be  made  to  the 
purchaser's  grantee  whenever  the  owner  of  the  tax  title  has 
actual  knowledge  of  the  conveyance  or  the  deed  has  been  recorded. 
If  the  purchaser  of  the  tax  title  conveys  only  a  portion  of  the 
land,  a  person  who  seeks  to  redeem  that  portion  must  pay  the 
amount  assessed  on  the  whole  with  interest  and  charges  in  order 
to  redeem.11  What  relief  the  court  would  gr.ant  the  owner  of 
an  entire  parcel  which  the  purchaser  at  a  sale  for  non-payment 
of  taxes  subdivided  and  conveyed  away  to  several  grantees  so 
that  the  owner  would  be  obliged  to  tender  the  entire  sum  to  each 
is  not  clear,  but  it  is  safe  to  assume  that  some  means  would  be 
found  to  protect  the  owner.12 

The  interest  which  the  law  requires  to  be  paid  upon  the 
charges  of  the  sale  need  not  be  paid  upon  the  charges  incident 
to  the  redemption  of  the  land.13  An  attempt  by  the  purchaser 
to  knowingly  collect  more  for  redemption  of  land  than  the  stat- 
ute authorizes  may  be  ground  for  permitting  redemption  more 
than  two  years  after  the  sale.14 

A  tax  title  is  not  merged  with  another  claim  on  the  land  and 
a  person  who  buys  the  tax  title  does  not  thereby  lose  any  other 
rights  he  may  have  in  the  land  if  the  tax  title  is  redeemed.15  A 
person  who  redeems  a  tax  title  cannot  treat  the  transaction  as 

*  Perry  v.  Lancy,  179  Mass.  183   (1901) ;  Hillis  v.  O'Keefe,  189  Mass.  139 
(1905);    McNeil  v.  O'Brien  204  Mass.  594   (1910). 
8  Faxon  v.  Wallace,  101  Mass.  444  (1869). 
»  Faxon  v.  Wallace,  98  Mass.  44  (1867). 

10  St.  1891,  c.  354,  now  G.  L.  c.  183,  §  7. 

11  McNeil  v.  O'Brien,  204  Mass.  594  (1910). 

12  McNeil  v.  O'Brien,  204  Mass.  594   (1910). 

13  Hawks  v.  Davis,  185  Mass.  119  (1904). 

14  Davidson  v.  Stafford,  210  Mass.  145  (1911).  For  the  penalty  for  such 
?onduct  see  G.  L.  c.  60,  §  104,  infra  page  412. 

15  Jenks  v.  Liverpool,  London  &  Globe  Insurance  Co.,  206  Mass.  591  (1910). 


Collection  of  Local  Taxes  377 

G.L.c.  60,  §63] 

a  purchase  and  hold  the  paramount  title  to  the  property  if  it 
appears  that  he  had  no  right  to  redeem.16 

There  were  formerly  provisions  of  statute  allowing  a  mort- 
gagee and  other  person  having  an  interest  in  the  property  but 
who  was  not  the  person  named  in  the  tax  list  as  the  owner,  to 
redeem  within  two  years  after  actual  notice  of  the  sale;  but 
these  provisions  were  stricken  out  in  1915  as  unnecessary  in  view 
of  the  protection  afforded  such  persons  in  proceedings  to  fore- 
close a  tax  title.17 

.  Prior  to  the  enactment  of  the  General  Laws  of  1921  an  owner 
of  land  sold  for  non-payment  of  taxes  might  under  some  cir- 
cumstances enforce  his  rights  either  to  redeem  from  a  valid  sale 
or  to  set  aside  an  invalid  one,  by  writ  of  entry,18  and  until  1849, 
when  the  right  to  redeem  by  bill  in  equity  was  granted,  writ 
of  entry  was  his  only  remedy  to  enforce  a  right  of  redemption ; 
but  a  writ  of  entry  will  not  lie  even  though  the  purchaser  has 
recorded  his  deed  and  refuses  to  give  the  owner  a  deed  of  release, 
if  the  owner  is  left  in  possession;19  so  that  under  the  law  as  it  is 
at  present,  the  writ  of  entry  is  not  an  available  remedy  for  the 
owner  unless  the  purchaser  has  taken  possession  after  the  expira- 
tion of  two  years  from  the  sale  and  it  appears  that  the  sale  was 
invalid  or  that  the  owner  had  paid  or  tendered  the  amount 
required  to  redeem  within  the  statutory  period. 

Recording  Certificate  of  Payment  to  Collector 

Section  63.  The  collector  shall  receive  any  money  paid  to  him 
instead  of  the  purchaser  and  give  to  the  person  paying  it  a  certificate 
specifying  the  amount  paid,  the  name  of  the  person  to  whom  and 
the  real  estate  on  which  the  tax  was  originally  assessed,  and  the 
registry  of  deeds  and  the  book  and  page  of  the  records  therein  where 
the  collector's  deed  is  recorded;  and  the  recording  of  the  certificate 

16  Jenks  v.  Liverpool,  London  &  Globe  Insurance  Co.,  206  Mass.  591  (1910). 

17  St.  1915,  c.  237,  §  16.  For  decisions  under  the  provisions  as  to  redemp- 
tion within  two  years  from  actual  notice  see  the  first  edition  of  this  work, 
pages  371-374  inc. 

18  Blossom  v.  Cannon,  14  Mass.  177  (1817) ;  Tilson  v.  Thompson,  10  Pick. 
359  (1835);  Farnum  v.  Buffum,  4  Cush.  260  (1849);  Alexander  v.  Pitts,  7  Cush. 
503  (1851);  Rand  v.  Robinson,  11  Cush.  289  (1853);  Hill  v.  Mowry,  6  Gray 
551  (1856) ;  Crowell  v.  Goodwin,  3  Allen  535  (1862) ;  Harrington  v.  Worcester, 
6  Allen  576  (1863);  Wall  v.  Wall,  124  Mass.  65  (1878);  Langdon  v.  Stewart, 
142  Mass.  576  (1886);  Barker  v.  Mackay,  175  Mass.  485  (1900);  Perry  v.  Lancy, 
179  Mass.  183   (1901). 

19  Field  v.  Hawley,  126  Mass.  327  (1879). 


378  Taxation   in    Massachusetts 

[G.  L.  c.  60,  §  63 
in  said  registry  shall  extinguish  all  right  and  title  acquired  under  the 

collector's  deed.    The  collector  shall  on  demand  pay  over  all  money 

so  paid,  to  the  person  entitled  thereto  as  determined  by  him,  except 

that  he  shall  retain  one  dollar  for  the  use  of  the  town  and  shall 

account  to  it  therefor.    If  the  amount  so  paid  is  less  than  the  purchaser 

was  entitled  to,  the  balance  with  interest  at  eight  per  cent  per  annum 

may  after  demand  therefor  be  recovered  in  contract  by  the  purchaser 

against  the  person  paying  such  amount,  if  the  action  is  commenced 

within  three  months  after  such  payment  to  the  collector. 

In  1848  it  was  first  provided  that  when  a  purchaser  of  land 
sold  for  non-payment  of  taxes  or  any  agent  duly  appointed  by 
him  could  not  be  found  upon  reasonable  search,  the  person  en- 
titled to  redeem  might  pay  the  amount  required  for  redemption 
to  the  town  or  city  treasurer,  who  should  give  a  certificate  show- 
ing the  fact  of  payment  and  designating  the  land  on  which  the 
tax  was  assessed.  Upon  filing  this  certificate  in  the  registry  of 
deeds  where  the  land  lay,  together  with  an  affidavit  of  himself 
or  some  disinterested  person;  that  upon  reasonable  search  neither 
the  owner  nor  his  agent  could  be  found,  which  affidavit  was 
given  the  force  of  prima  facie  evidence  of  the  facts  recited  there- 
in, all  right  and  title  acquired  under  the  collector's  deed  was 
released  and  discharged. 

These  provisions  remained  without  substantial  change  until 
1902.  While  they  were  in  force  and  since  the  statute  has  been 
in  its  present  form  it  has  been  held  that  the  remedy  given  by 
them  is  not  exclusive  and  that  persons  whose  sole  reason  for 
not  redeeming  from  a  tax  sale  during  the  statutory  period  was 
that  they  were  unable  to  find  the  purchaser  are  not  precluded 
by  the  statute  now  under  consideration  from  relief  in  equity.1 

In  1902  the  method  of  redemption  described  above  was  ex- 
tended to  all  cases,  whether  the  purchaser  at  the  tax  sale  could 
be  found  or  not,  and  the  affidavit  prescribed  by  the  earlier  stat- 
ute became  unnecessary  and  was  no  longer  required;  while  the 
collector  of  taxes  instead  of  the  city  or  town  was  substituted 
as  the  person  to  whom  tender  could  be  made.2    There  are  distinct 

1  Clark  v.  Lancy,  178  Mass.  460  (1901);  Barry  v.  Lancy,  179  Mass.  112 
(1901);  Perry  v.  Lancy,  179  Mass.  183  (1901);  Rogers  v.  Nichols,  186  Mass. 
440  (1904);  McNeil  v.  O'Brien,  204  Mass.  594  (1910);  Davidson  v.  Stafford, 
210  Mass.  145   (1911). 

2  Rogers  v.  Nichols,  186  Mass.  440  (1904). 


Collection  of  Local  Taxes  379 

G.  L.  c.  60,  §  64] 

limitations  upon  the  effectiveness  of  the  remedy  furnished  by 
this  statute,  even  in  its  present  form.  Compliance  with  its  terms 
would  still  leave  the  tax  deed  outstanding  upon  the  record,  and 
although  its  legal  effect  would  be  neutralized  by  the  certificate 
provided  for  in  the  statute,  it  might  constitute  a  practical  impair- 
ment of  the  ease  of  transferring  title.  Moreover  it  might  be 
impossible  to  ascertain  the  precise  amount  due  without  confer- 
ring in  person  with  the  purchaser  and  the  owner  could  protect 
himself  with  certainty  only  by  depositing  with  the  collector 
the  largest  amount  which  could  under  any  circumstances  be 
required.  Hence  it  remains  highly  desirable  that  the  person 
entitled  to  redeem  should  be  able  to  find  the  purchaser  and  get 
from  him  a  correct  statement  of  the  amount  necessary  for  re- 
demption.3 

Tax  Title  Absolute  only  after  Foreclosure 

Section  64.  The  title  conveyed  by  a  tax  collector's  deed  or  by 
a  taking  of  land  for  taxes  shall  be  absolute  after  foreclosure  of  the 
right  of  redemption  by  decree  of  the  land  court  as  provided  in  this 
chapter.  The  land  court  shall  have  exclusive  jurisdiction  of  the 
foreclosure  of  all  rights  of  redemption  from  titles  conveyed  by  a 
tax  collector's  deed  or  a  taking  of  land  for  taxes,  in  a  proceeding 
provided  for  in  sections  sixty-five  to  seventy-five,  inclusive. 

Sections  sixty-four  to  seventy-five  inclusive  set  forth  the 
procedure  for  the  foreclosure  of  the  right  of  redemption  from 
a  sale  for  non-payment  of  taxes  adopted  in  1915  as  a  substitute 
for  the  time-honored  method  of  sale  of  the  absolute  title  subject 
to  right  of  redemption,  which  had  proved  so  unsatisfactory.  The 
object  of  the  new  method  was  two-fold,  namely,  first,  to  protect 
the  owners  and  persons  having  an  interest  in  property  by  making 
sure  that  as  far  as  it  could  be  done  they  would  receive  actual 
notice  of  the  sale  before  the  right  of  redemption  was  lost;  and 
secondly,  to  free  the  law  of  tax  titles  from  the  extremely  tech- 
nical state  into  which  it  had  fallen  from  the  tendency  of  courts  to 
alleviate  the  harshness  of  the  law  by  requiring  an  accuracy  almost 
impossible  of  attainment  in  the  procedure  of  collectors.  It  is 
perhaps  too  early  to  determine  definitely  how  successful  the 

3  Davidson  v.  Stafford,  210  Mass.  145  (1911). 


380  Taxation    in    Massachusetts 

[G.  L.c.  60,  §§65-67  inc. 

effort  has  been;  but  it  is  at  least  notable  that  it  has  not  yet 
proved  necessary  to  bring  any  clause  of  the  statute  of  1915  be- 
fore the  supreme  court  for  interpretation. 

Petition  for  Foreclosure -Notice -Default 

Section  65.  After  two  years  from  a  sale  or  taking  of  land  for 
taxes,  whoever  then  holds  the  title  thereby  acquired  may  bring  a 
petition  in  the  land  court  for  the  foreclosure  of  all  rights  of  redemption 
thereunder.  Such  petition  shall  be  made  in  the  form  to  be  prescribed 
by  said  court  and  shall  set  forth  a  description  of  the  land  to  which 
it  applies,  with  its  assessed  valuation,  the  petitioner's  source  of  title, 
giving  a  reference  to  the  place,  book  and  page  of  record,  and  such 
other  facts  as  may  be  necessary  for  the  information  of  the  court. 
Two  or  more  parcels  of  land  may  be  included  in  any  petition  brought 
by  a  town,  whether  under  a  taking  or  as  purchaser  of  such  title  or 
titles. 

Section  66.  Upon  the  filing  of  such  a  petition  the  court  shall 
forthwith  cause  to  be  made  by  one  of  its  official  examiners  an  exam- 
ination of  the  title  sufficient  only  to  determine  the  persons  who  may 
be  interested  in  the  same,  and  shall  upon  the  filing  of  the  examiner's 
report  notify  all  persons  appearing  to  be  interested,  whether  as 
equity  owners,  mortgagees,  lienors,  attaching  creditors  or  otherwise, 
of  the  pendency  of  the  petition,  the  notice  to  be  sent  to  each  by 
registered  mail  and  return  of  receipt  required,  the  addresses  of  respond- 
ents, so  far  as  may  be  ascertained,  being  furnished  by  the  petitioner. 
Such  other  and  further  notice  by  publication  or  otherwise  shall  be 
given  as  the  court  may  at  any  time  order.  The  notice,  to  be  addressed 
"  to  all  whom  it  may  concern,"  shall  contain  the  name  of  the  petitioner, 
the  names  of  all  known  respondents,  a  description  of  the  land  and  a 
statement  of  the  nature  of  the  petition,  shall  fix  the  time  within 
which  appearance  may  be  entered,  and  shall  contain  a  statement  that 
unless  the  party  notified  shall  appear  within  the  time  fixed  a  default 
will  be  recorded,  the  petition  taken  as  confessed,  and  the  right  of 
redemption  forever  barred. 

Section  67.  After  the  return  day  fixed,  to  be  at  least  twenty 
days  after  the  time  of  the  actual  issuance  of  notice,  the  court  shall, 
if  satisfied  that  the  notice  has  been  properly  given,  on  motion  of  the 
petitioner  enter  an  order  defaulting  all  persons  failing  to  appear, 
and  decreeing  that  the  petition  as  to  them  be  taken  as  confessed. 


Collection  of  Local  Taxes  381 

G  L.c.  60,  §§  68-70  inc] 

Redemption  by  Leave  of  Court 

Section  68.  Any  person  claiming  an  interest,  within  ten  days 
after  entering  his  appearance  or  within  such  further  time  as  may 
on  motion  be  allowed  by  the  court,  shall;  if  he  desires  to  redeem,  file 
an  answer  setting  forth  his  right  in  the  premises,  together  with  all 
matters  which  in  equity  and  good  conscience  entitle  him  to  redeem, 
and  an  offer  to  redeem  upon  such  terms  as  may  be  fixed  by  the  court. 
Thereupon  the  court  shall  hear  the  parties,  and,  if  good  cause  is 
shown  therefor,  may  make  a  finding  allowing  the  party  to  redeem, 
within  a  time  fixed  by  the  court,  upon  payment  to  the  petitioner 
of  an  amount  sufficient  to  cover  the  original  sum,  costs,  interest  at  the 
rate  of  eight  per  cent  per  annum,  and  all  subsequent  taxes,  costs  and 
interest  to  which  the  petitioner  may  be  entitled  under  section  sixty-one 
or  sixty-two,  together  with  the  costs  of  the  proceeding  and  such  coun- 
sel fee  as  the  court  deems  reasonable.  The  court  may  impose  such 
other  terms  as  justice  and  the  circumstances  warrant. 

The  redemption  provided  by  this  section  is  not  an  absolute 
right,  the  two  years  from  the  sale  having  expired,  and  the  priv- 
ilege of  redemption  in  the  discretion  of  the  court  is  analogous 
to  the  right  to  redeem  by  proceedings  in  equity  which  previously 
existed  and  which  has  not  been  taken  away.1  It  may  be  assumed 
that  the  decisions  under  the  statute  allowing  redemption  in 
equity  are  of  some  value  as  precedents  in  construing  the  statute 
now  under  consideration. 

Decree  Barring  Redemption 

Section  69.  If  a  default  is  entered  under  section  sixty-seven, 
or  on  motion  for  failure  to  file  answer,  or  if  redemption  is  not  made 
within  the  time  and  upon  the  terms  fixed  by  the  court  under  the 
preceding  section,  or  if  at  the  time  fixed  for  the  hearing  the  person 
claiming  the  right  to  redeem  does  not  appear  to  urge  his  claim,  or 
if  upon  hearing  the  court  determines  that  the  facts  shown  do  not 
entitle  him  to  redeem,  a  decree  shall  be  entered  which  shall  forever 
bar  all  rights  of  redemption. 

Procedure  for  Contesting  Validity  of  Tax  Title 

Section  70.       If  a  person  claiming  an  interest  desires  to  raise 
any  question  concerning  the  validity  of  such  a  title,  he  shall  do  so 
1  G.  L.  c.  60,  §  76,  infra  page  383. 


382  Taxation    in   Massachusetts 

[G.  L.  c.  60,  §§  71-74  inc. 
by  answer  filed  in  the  proceeding  within  ten  days  after  filing  his 
appearance,  or  within  such  further  time  as  may  on  motion  be  allowed 
by  the  court,  or  else  be  forever  barred  from  contesting  or  raising 
the  question  in  any  other  proceeding.  He  shall  also  file  specifications 
setting  forth  the  matters  upon  which  he  relies  to  defeat  the  title; 
and  unless  such  specifications  are  so  filed,  all  questions  of  the  valid- 
ity or  invalidity  of  the  title,  whether  in  form  of  deed  or  proceedings 
relating  to  the  sale  or  taking,  shall  be  deemed  to  have  been  waived. 
Upon  the  filing  of  the  specifications  the  court  shall  hear  the  parties, 
and  shall  enter  a  decree  in  conformity  with  the  law  on  the  facts 
found. 

Section  71.  Any  party  may  claim  a  jury  trial  within  ten  days 
after  filing  his  answer,  but  unless  so  claimed  the  right  to  jury  trial 
shall  be  deemed  to  be  waived.  Upon  such  a  claim  issues  shall  be 
framed  therefor  in  accordance  with  the  practice  in  the  land  court. 

Section  72.  Questions  of  law  may  be  reported  by  the  court  or 
taken  to  the  supreme  judicial  court  for  revision  by  any  party  aggrieved, 
in  the  same  manner  as  in  other  proceedings  in  the  land  court. 

Deposit  of  Costs 

Section  73.  The  petitioner,  at  the  time  of  filing  his  petition, 
shall  deposit  with  the  recorder  a  sum  sufficient  to  cover  the  costs 
of  the  proceedings  as  estimated  by  the  court,  and  the  fees  chargeable 
by  the  court  as  the  case  proceeds  shall  be  computed  in  accordance 
with  section  thirty-nine  of  chapter  two  hundred  and  sixty-two,  so 
far  as  applicable,  except  that  the  charge  for  examination  of  title 
shall  be  the  actual  amount  allowed  the  title  examiner  by  the  court. 
The  money  paid  into  court  as  aforesaid  by  the  petitioner  shall  be 
disbursed  directly  by  the  recorder  for  necessary  expenses  incurred, 
and  the  balance  of  fees  chargeable  in  each  finished  case  shall  be  paid 
over  quarterly  to  the  commonwealth. 

Recording  Notice  of  Petition 

Section  74.  Notice  of  filing  the  petition  for  foreclosure  and 
notice  of  the  final  disposition  thereof  shall  be  recorded  in  the  registry 
of  deeds,  as  provided  for  in  land  registration  proceedings. 


Collection  of  Local  Taxes  383 

G.L.c.  60,  §§75,76] 

Practice  and  Procedure  in  Foreclosure  Cases 

Section  75.  Practice  and  procedure  under  sections  sixty-four 
to  seventy-four,  inclusive,  not  therein  otherwise  provided  for,  shall 
conform  as  nearly  as  possible  to  the  land  court  practice,  rules,  reg- 
ulations and  procedure  in  relation  to  matters  of  land  registration. 

Relief  in  Equity 

Section  76.  The  superior  court  shall  have  jurisdiction  as  to 
redemption  in  all  cases  of  taking  or  sale  of  land  for  non-payment 
of  taxes  if  relief  is  sought  before  proceedings  for  foreclosure  of  the 
right  of  redemption  have  been  begun  in  the  land  court,  and  may 
grant  such  right  of  redemption  or  other  relief  as  justice  may  require, 
fixing  the  terms  therefor,  or  may  refuse  the  same.  The  proceedings 
shall  be  begun  by  a  bill  as  in  equity,  and  memoranda,  both  of  the 
beginning  and  of  the  final  disposition  thereof,  shall  be  recorded  or 
filed  in  the  registry  of  deeds,  similar  to  those  required  by  sections 
fifteen  and  sixteen  of  chapter  one  hundred  and  eighty-four  in  the 
case  of  unregistered  land,  and  to  those  required  by  sections  eighty-six 
and  eighty-seven  of  chapter  one  hundred  and  eighty-five  in  the  case 
of  registered  land. 

The  redemption  of  land  from  a  valid  sale  for  non-payment 
of  taxes,  within  or  without  the  period  allowed  by  statute  for 
redemption,  is  not  within  the  general  powers  of  a  court  of  equity.1 
It  was  held  in  1845  that  even  when  the  purchaser  at  a  tax  sale 
had  by  fraud  and  deception  prevented  the  owner  from  redeeming 
within  the  statutory  period  the  owner  could  have  no  relief  in 
equity.2  In  1849  however  it  was  provided  by  statute  that  "  in 
all  cases  of  sales  of  real  estate  for  the  payment  of  taxes  the 
supreme  judicial  court  shall  have  full  equity  powers."  In  1856  the 
clause  "  provided  relief  be  sought  within  five  years  from  such 
sale  "  was  added  to  the  statute  and  it  appeared  in  substantially 
the  same  form  in  the  General  Statutes,  the  Public  Statutes  and 
the  codification  of  1888.  While  these  statutes  were  in  force  it 
was  held  that  jurisdiction  was  confined  to  the  supreme  judicial 
court,  and  that  the  superior  court  by  general  grant  of  equity 
powers  had  not  been  authorized  to  deal  with  redemption  from 

1  Barker  v.  Mackay,  168  Mass.  76,  79  (1897). 

2  Mitchell  v.  Green,  10  Met.  101  (1845). 


384  Taxation    in    Massachusetts 

[G.L.  c.  60,  §76 
tax  sales.3  In  1900  the  superior  court  was  given  equal  power 
with  the  supreme  judicial  court  to  give  relief  in  equity  from 
tax  sales.  In  1905  the  period  within  which  relief  might  be 
sought  was  extended  to  six  years.  In  1915  .the  phraseology  of 
the  section  was  modified  considerably,  the  provisions  for  re- 
cording added,  and  the  period  for  instituting  proceedings  estab- 
lished as  any  time  before  foreclosure  proceedings  were  begun 
in  the  land  court. 

The  effect  of  the  statute  of  1845  was  two-fold.  In  the  first 
place  it  permitted  an  owner  who  was  entitled  by  law  to  redeem 
the  land,  the  statutory  period  not  having  expired,  instead  of 
pursuing  his  remedy  of  writ  of  entry  or  other  proceeding  upon 
the  law  side  of  the  court,  to  effect  the  redemption  by  proceedings 
in  equity,  and  to  this  extent  it  was  merely*  a  change  in  remedy. 
In  the  second  place  it  gave  an  owner  whose  right  to  redeem  at 
law  had  been  lost  by  the  expiration  of  the  statutory  period  the 
privilege  of  redeeming  the  land  at  equity  during  a  subsequent 
term  of  years  provided  the  circumstances  made  it  just  and  equi- 
table that  he  be  allowed  to  do  so;  and  to  this  extent  it  was  a 
change  in  substantive  rights.  The  provision  for  foreclosure  of 
tax  titles  adopted  in  1915  constitutes  an  alternative  method  of 
establishing  an  equitable  right  to  redeem,  and  deprived  this  stat- 
ute of  some  of  its  importance,  but  it  is  still  in  force,  and  in  case 
the  purchaser  of  a  tax  title  makes  no  move  to  foreclose,  may 
be  of  great  service. 

What  circumstances  render  it  just  and  equitable  that  an 
owner  should  be  allowed  to  redeem  after  the  period  for  redemp- 
tion at  law  has  expired  cannot  be  stated  with  exactness ;  but  de- 
ception or  evasion  by  the  purchaser,4  mistake  or  ignorance  of  facts 
by  the  owner 5  or  his  minority  6  or  absence  from  the  state  7  present 
grounds  for  relief  upon  which  courts  have  acted  favorably. 

»  Barker  v.  Mackey,  168  Mass.  76   (1897). 

4  Widersum  v.  Bender,  172  Mass.  436  (1899);  Barry  v.  Lancy,  179  Mass. 
112  (1901);  Solis  v.  Williams,  205  Mass.  850  (1910);  Holbrook  v.  Brown,  214 
Mass.  542  (1913).  Other  grounds  recognized  have  been  a  misstatement  of  the 
amount  required  for  redemption,  Davidson  v.  Stafford,  210  Mass.  145  (1911); 
a  reasonable  doubt  as  to  the  validity  of  the  assessment  under  which  the  sale 
was  made,  Garden  Cemetery  Corporation  v.  Baker,  218  Mass.  339  (1914);  failure 
of  a  non-resident  purchaser'  to  file  name  and  address  of  his  agent  under  G.  L.  c. 
60,  §47,  Davidson  v.  Stafford.  210  Mass.  145  (1911). 
*      5  O'Callaghan  v.  Lancy,  187  Mass.  474    (1905). 

6  O'Day  v.  Bowker,  143  Mass.  59  (1886). 

7  Clark  v.  Lancy,  178  Mass.  460  (1901). 


Collection  of  Local  Taxes  385 

G.  L.  c.  60,  §  76] 

To  maintain  a  bill  in  equity  for  redemption  from  a  tax  sale 
a  person  must  have  some  title  or  interest  in  the  land,  and  if 
he  has  lost  his  rights  or  conveyed  them  away  he  is  not  entitled 
to  redeem.  In  general  it  may  be  said  that  to  redeem  in  equity 
a  person  must  have  an  interest  sufficient  to  authorize  redemption 
at  law.8  If  the  bill  is  seasonably  brought,  additional  parties 
defendant  may  be  added  later;9  but  such  parties  cannot  benefit 
by  the  decree  unless  they  can  show  that  their  equities  are  supe- 
rior to  those  of  the  purchaser  of  the  tax  titled0  The  right  to 
maintain  a  bill  in  equity  may  be  lost  by  failure  to  institute  it 
seasonably,  although  the  owner  was  unaware  of  the  sale,11  or 
was  a  minor.12 

Redemption  in  equity  may  be  secured  only  in  the  direct 
method  provided  by  statute;13  and  the  possible  right  of  the 
owner  to  redeem  at  equity  must  be  recognized  as  an  interest  in 
the  land  court  as  long  as  the  right  to  redeem  in  equity  is  out- 
standing.14 If  the  bill  to  redeem  is  maintained  the  court  will 
order  the  purchaser  to  make  a  deed  of  quitclaim  to  the  owner 
upon  payment  of  the  amount  due.15 

When  land  is  sold  for  non-payment  of  taxes  but  by  reason 
of  some  illegality  in  the  proceedings  the  sale  is  void  and  conveys 
no  title,  but  the  purchaser  causes  the  deed  to  be  recorded  and 
refuses  to  release  to  the  owner,  and  the  owner  is  in  possession 
and  cannot  try  his  title  by  writ  of  entry,  he  may  maintain  a  bill 
in  equity  to  remove  the  cloud  upon  his  title  and  to  compel  the 
purchaser  to  give  him  a  deed  of  release;10  and  he  has  the  same 
right  although  the  purchaser  is  a  city  or  town  17  or  although 
the  sale  is  void  because  the  statute  upon  which  the  assessment 
was  based  is  unconstitutional.18    The  right  to  maintain  a  bill 

8  Rogers  v.  Rutter,  11  Gray  410  (1858);  O'Day  v.  Bowker,  143  Mass.  50 
(1886). 

9  Clark  v.  Lancy,  178  Mass.  460  (1901);  Solis  v.  Williams,  205  Mass.  550 
(1910). 

10  Union  Trust  Co.  v.  Reed.  213  Mass.  199  (1912). 

11  Gladwin   v.  French,    112    Mass.   186    (1873). 

12  O'Day  v.  Bowker,  143  Mass.  59  (1886). 

13  Dewey  v.  Donovan,  126  Mass.  335  (1879). 

14  Lancy  v.   Abington  Savings   Bank,   177   Mass.  431    (1901). 

15  Simonds  v.  Towne,  4   Gray  603    (1855). 

16  Russell  v.  Deshon,  124  Mass.  342  (1878) ;  Davis  v.  Boston,  129  Mass. 
377  (1880);  Knowlton  v.  Moore,  136  Mass.  32  (1883);  Smith  v.  Smith,  150 
Mass.  73  (1889);  Barker  v.  Mackay,  168  Mass.  76  (1897);  White  v.  Gove,  183 
Mass.  333  (1903);  Solis  v.  Williams.  205  Mass.  350   (1910). 

17  Davis  v.  Boston,   129   Mass.   377    (1880). 

18  White  v.  Gove,  183  Mass.  333  (1903). 


386  Taxation    in    Massachusetts 

[G.L.  c.  60,  §77 

in  equity  under  such  circumstances  is  not  derived  from  the 
statute  set  forth  at  the  beginning  of  this  section  but  rests  upon 
the  general  equity  jurisdiction  of  the  court,  and  consequently 
it  is  not  subject  to  the  limitations  imposed  by  that  statute.19  A 
bill  in  equity  to  set  aside  an  invalid  tax  sale  is  subject  to  general 
equitable  principles  and  when  the  defect  in  the  assessment  was 
due  to  the  owner's  request,  and  the  land  has  been  correctly  re- 
assessed, relief  will  not  be  granted  unless  the  owner  pays  the 
taxes  as  re-assessed.20 

An  owner  may  join  in  one  proceeding  in  equity  a  bill  to 
remove  a  cloud  on  his  title  and  a  bill  to  redeem,  both  based  on 
the  same  tax  sale  and  rely  on  the  former  if  the  tax  title  is  held 
invalid  and  on  the  latter  if  held  valid;21  or  he  may  amend  a 
bill  to  redeem  so  that  it  will  become  a  bill  to  remove  a  cloud 
from  his  title.22 

If  a  collector  of  taxes  is  about  to  sell  land  for  a  tax  which 
the  owner  contends  is  invalid  the  owner  cannot  maintain  a  bill 
in  equity  to  enjoin  the  collector  from  making  the  sale.23  The 
prompt  and  unembarrassed  collection  of  taxes  is  considered  to 
be  of  so  much  importance  to  the  public  that  the  owner  is  left 
under  such  circumstances  to  his  remedy  at  law  to  prevent  the 
sale,  by  paying  the  tax  under  protest  and  suing  to  recover  it 
back.  If  he  is  unable  or  unwilling  to  pay  the  tax  and  the  sale 
takes  place  he  may  then  avoid  its  effect  if  the  tax  is  illegal  by 
bringing  a  bill  in  equity  to  remove  the  cloud  upon  his  title,  or, 
if  he  has  been  disseised  by  the  purchaser,  by  a  writ  of  entry  to 
recover  possession. 

Disposition  of  Land  Bought  or  Taken  by  Town 

Section  77.  After  foreclosure  by  a  town  of  the  rights  of  re- 
demption under  a  tax  title  or  taking,  as  hereinbefore  provided,  the 
land  shall  thereafter  be  held  and  disposed  of  like  any  land  belonging 
to  it  and  held  for  municipal  purposes,  and  shall  not  while  so  held  be 
assessed  for  taxes. 

19  Smith  v.  Smith,  150  Mass.  73  (1889) ;  Barker  v.  Mackay,  168  Mass.  76 
(1897). 

20  Curtiss  v.  Sheffield,  213  Mass.  239   (1913). 

21  Garden  Cemetery  Corporation  v.  Baker,  218  Mass.  339    (1914). 

22  Phelps  v.  Creed,  231  Mass.  228  (1918). 

23  Loud  v.  Charlestown,  99  Mass.  208  (1868) ;  Hunnewell  v.  Charlestown, 
106  Mass.  350  (1871);  Norton  v.  Boston,  119  Mass.  194  (1875);  Greenhood  v. 
MacDonald,  183  Mass.  342  (1903);  Webber  Lumber  Co.  v.  Shaw,  189  Mass. 
366  (1905). 


Collection  of  Local  Taxes  387 

G.  L.  c.  60,  §  78] 

Section  78.  Before  foreclosure  or  redemption,  taxes  on  land 
taken  or  purchased  by  a  town  shall  be  assessed  to  the  person  to 
whom  they  would  be  assessed  if  the  land  had  not  been  so  taken  or 
purchased.  In  case  of  a  sale  under  the  following  section,  such  taxes 
shall  be  deducted  from  the  proceeds  thereof,  before  any  surplus  is 
disposed  of  as  therein  provided.  In  case  of  foreclosure,  any  such 
taxes  of  which  the  lien  has  not  expired  shall  be  credited  to  the  col- 
lector as  if  collected  by  him. 

Prior  to  1915  the  statutes  provided  that  after  land  had  been 
taken  or  purchased  by  a  city  or  town  taxes  should  be  assessed 
on  the  land  as  though  it  had  not  been  so  taken  or  purchased 
and  should  be  deducted  from  the  proceeds  of  the  final  sale;  and 
after  the  right  of  redemption  had  expired  the  collector  was  di- 
rected to  make  a  final  sale  of  the  land,  and  after  deducting 
taxes,  interest,  charges,  the  expenses  of  sale  and  subsequent  taxes, 
to  deposit  the  balance  with  the  city  or  town  treasurer  to  be 
paid  to  the  person  entitled  to  the  land  if  demanded  within  five 
years,  otherwise  to  be  retained  by  the  city  or  town.1  The  stat- 
utes required  a  formal  notice  of  sale,  and  under  these  statutes 
it  was  held  that  the  power  of  a  city  or  town  to  dispose  of  land 
taken  or  purchased  by  it  for  non-payment  of  taxes  was  restricted 
to  a  sale  by  auction  in  the  manner  prescribed  by  the  statute 
after  the  period  of  redemption  had  passed,  and  a  sale  in  any  other 
way  conveyed  no  title.2  But  although  the  deed  conveyed  no 
title,  the  payment  of  the  consideration  and  its  acceptance  by 
the  city  or  town  effected  a  payment  of  the  taxes  for  which  the 
land  was  sold  or  taken,  and  discharged  the  lien,  whether  the 
parties  intended  such  a  result  or  not.3  If  the  collector  was 
unable  to  sell  the  land,  he  was  required  to  file  an  affidavit  stating 
the  fact,  and  the  land  thereafter  remained  in  the  possession  and 
custody  of  the  town  until  sold.4 

The  statute  which  established  the  system  of  making  tax 
titles  absolute  by  foreclosure  provided  a  different  method  of 
dealing  with  land  bought  or  taken  by  the  town  which  is  now 
embodied  in  the  statutes  at  the  head  of  this  section,  but  the 

1  St.  1909,  c.  490,  Part  II,  §  §  67,  68. 

2  Walsh  v.  Wilson,  130  Mass.  124   (1881). 

3  Langley  v.  Chapin,  134  Mass.  82  (1883) ;  Rogers  v.  Lynn,  200  Mass.  354 
(1909). 

4  St.  1909,  c.  490,  Part  II,  §  69. 


388  Taxation    in    Massachusetts 

tG.L.  c.  60,  §79 

earlier  statutes  have  never  been  repealed  ■  and  they  are  still  in 
force  with  respect  to  land  taken  or  purchased  by  a  town  prior 
to  July  1,  1915.6 

It  was  held  in  1918  that  the  title  created  by  a  sale  made  after 
July  1,  1915,  was  paramount  to  the  title  acquired  by  a  city  or 
town  by  taking  or  purchase  for  the  taxes  of  previous  years,7  and 
in  the  following  year  the  statute  was  enacted  providing  that 
when  a  city  or  town  had  taken  or  purchased  land  for  non-pay- 
ment of  taxes,  it  was  not  required  to  sell  the  land  for  the  taxes 
of  subsequent  years  which  had  already  been  assessed,  but  the 
lien  for  such  taxes  should  continue  and  such  taxes  should  be  paid 
to  the  town  if  the  land  should  be  subsequently  redeemed.8 


Sale  of  Lands  of  Low  Value  Held  by  City  or  Town 

under  Tax  Titles 

Section  79.  After  two  years  from  the  taking  or  purchase  by 
a  town  of  any  lands  for  non-payment  of  taxes,  the  commissioner 
may,  and  on  written  application  of  its  collector  shall,  inquire  into  the 
value  of  such  lands.  If  the  commissioner  is  of  opinion  that  such 
lands  are  of  insufficient  value  to  meet  the  taxes,  interest  and  charges, 
and  all  subsequent  taxes  and  assessments  thereon,  together  with  the 
expenses  of  a  foreclosure  under  section  sixty-nine,  he  shall  make  affi- 
davit of  such  finding,  which  shall  be  recorded  in  the  registry  of  deeds 
for  the  district  where  the  town  is  situated. 

Upon  the  recording  thereof  the  collector  may  sell  all  the  parcels 
included  therein,  severally  or  together,  at  public  auction  to  the  high- 
est bidder,  first  giving  notice  of  the  time  and  place  of  sale  by  posting 
a  notice  of  the  sale  in  some  convenient  and  public  place  in  the  town 
fourteen  days  at  least  before  the  sale.  If  the  sale  under  this  section 
shall  not  be  made  within  two  years  after  the  right  of  redemption  under 
section  sixty-two  from  the  tax  sale  or  taking  has  expired,  it  shall  be 
made  by  the  collector  for  the  time  being  when  he  deems  best,  or  at 
once  upon  service  on  him  of  a  written  demand  by  any  person  interested 
therein.  The  collector  shall  execute  and  deliver  to  the  highest  bidder 
a  deed,  without  covenant  except  that  the  sale  has  in  all  particulars 

5  G.  L.  c.  282. 

G  St.  1915,  c.  237,  §  20.  St.  1909,  c.  490,  Part  II,  §  68  was  amended  by  St. 
1918,    c.   257,    §56. 

7  Chadwick  v.  Cambridge,  230  Mass.  580  (1918). 

8  St.  1919,  c.  263,  now  G.  L.  c.  60,  §  61,  supra  page  373. 


Collection  of  Local  Taxes  389 

G.L.c.  60,  §§80, 81] 

been  conducted  according  to  law.    Title  taken  pursuant  to  a  sale  under 

this  section  shall  be  subject  to  sections  sixty-four  to  seventy -eight, 

inclusive. 

If  the  amount  received  from  the  sale  is  more  than  the  taxes,  inter- 
est and  charges,  and  subsequent  taxes  and  assessments,  on  all  lands 
included  in  the  sale,  together  with  the  expenses  thereof,  the  balance 
shall  be  deposited  with  the  town  treasurer  to  be  paid  to  the  person 
entitled  thereto,  if  demanded  within  five  years,  otherwise  it  shall 
inure  to  the  town.  If  such  surplus  results  from  the  sale  of  several 
parcels  for  a  lump  sum,  it  shall  be  held  as  aforesaid  for  the  several 
owners  in  proportion  to  the  prices  at  which  the  several  parcels  were 
originally  taken-  or  purchased  by  the  town. 

Section  80.  If  no  person  bids  at  such  a  sale,  or  if  the  person 
to  whom  the  land  is  sold  does  not  within  ten  days  pay  to  the  collector 
the  sum  bid  by  him,  the  collector  shall  make  an  affidavit  of  the  fact, 
which  shall  be  recorded  in  the  registry  of  deeds  within  thirty  days 
after  the  date  on  which  the  land  was  offered  for  sale,  after  which 
said  affidavit  shall  be  in  the  custody  of  the  town  treasurer,  and  the 
same,  or  a  copy  thereof,  certified  by  the  register  of  deeds,  shall  be 
prima  facie  evidence  of  the  facts  therein  stated. 

Section  81.  The  collector  shall,  within  thirty  days  after  the 
recording  of  said  affidavit,  take  possession  of  said  land  in  behalf 
of  the  town. 

In  many  cities  and  towns  there  are  tracts  of  land  of  little 
or  no  value,  consisting  of  lots  sold  in  the  course  of  an  unsuccess- 
ful or  perhaps  fraudulent  land  development,  woodland  from 
which  the  wood  has  been  cut  and  other  equally  worthless 
parcels,  the  taxes  upon  which  no  one  is  willing  to  pay;  and  since 
the  cost  of  selling  the  land  is  often  greater  than  its  value,  no 
one  is  willing  to  bid  it  in,  and  in  the  hands  of  the  city  or  town 
such  land  is  more  of  a  liability  than  an  asset.  The  foregoing 
statute  was  first  enacted  in  1915  *  as  a  means  of  solving  the 
difficulty,  by  enabling  land  purchased  or  taken  by  a  city  or  town 
for  non-payment  of  taxes  to  be  sold  for  less  than  the  amount 
due,  and  to  authorize  the  grouping  together  in  one  sale  at  a 
lump  sum  of  small  parcels  of  little  value. 

As  originally  drawn  the  act  contained  several  defects,  which 
were  rectified  in  191S.2    Under  the  1918  statute,  the  value  is 

1  St.  1915,  c.  56. 

2  St.  1918,  c.  257,  §  52.  This  statute  did  not  go  into  effect  until  1921,  St. 
1920  §  2.    The  amendments  were  (1)  to  provide  means  for  bringing  the  matter 


390  Taxation    in    Massachusetts 

[G.L.c.  60,  §§82-84  inc. 

to  be  compared  with  the  expenses  of  a  sale  if  the  sale  or  taking 
occurred  prior  to  July  1,  1915,  otherwise  with  foreclosure.  The 
General  Laws  authorize  comparison  with  the  expenses  of  fore- 
closure only;  but  the  1918  statute  has  not  been  repealed.3 

Proceedings  if  Tax  Title  is  Deemed  Invalid 

Section  82.  If  a  collector  has  reasonable  cause  to  believe  that 
the  title  to  land  sold  for  non-payment  of  taxes  or  of  assessments,  a 
lien  for  which  is  enforceable  by  a  sale  of  land,  is  invalid  by  reason  of 
an  error,  omission  or  informality  in  the  assessment  or  sale,  he  may, 
within  two  years  after  the  date  of  the  deed  of  such  land,  give  notice 
to  the  record  owner  thereof,  requiring  him,  within  thirty  days  there- 
after, to  release  any  interest  which  he  may  have  in  such  land  under 
said  deed,  and  to  receive  from  the  town  the  amount  paid  therefor 
with  interest  at  ten  per  cent  or  to  file  with  the  collector  a  written 
statement  that  he  refuses  to  release  such  interest.  Such  statement,  if 
recorded  in  the  registry  of  deeds,  shall  release  the  town  from  any 
liability  upon  the  warranty  in  said  deed. 

Section  83.  If,  within  thirty  days  after  such  notice,  such  owner 
does  not  comply  therewith,  the  collector  shall  cause  a  copy  thereof, 
with  an  affidavit  by  himself  or  by  a  disinterested  person  of  the  serv- 
ice thereof  and  of  the  facts  in  the  case,  to  be  recorded  in  the  registry 
of  deeds.  A  note  of  reference  to  the  record  of  said  copy  shall  be  made 
on  the  margin  of  the  record  of  the  collector's  deed  therein  referred 
to;  and  from  the  time  of  such  record  the  interest  payable  by  reason 
of  a  breach  of  warranty  in  such  deed  shall  cease,  and  all  right  and 
title  acquired  under  such  deed  shall  be  held  to  be  released.  The 
collector  shall  give  notice  of  such  proceedings  to  the  town  treasurer, 
who  shall,  on  reasonable  demand,  pay  over  out  of  any  funds  in  his 
hands  the  amount  due  in  respect  of  said  deed  to  the  person  entitled 
thereto. 

Section  84.  If  the  invalidity  of  a  title  described  in  section  eighty- 
two  was  caused  by  an  error,  omission  or  informality  in  the  assessment, 
the  collector,  after  obtaining  from  the  holder  of  the  deed  a  release 


to  the  attention  of  the  commissioner  and  requiring  him  to  act;  (2)  to  make 
the  statute  conform  to  the  foreclosure  proceedings  authorized  by  St.  1915,  c. 
237;  (3)  to  dispense  with  publication;  (4)  to  make  it  clear  the  several 
parcels  could  be  sold  at  one  sale  for  a  lump  sum;  (5)  to  provide  that  the  deed 
should  be  without  covenants,  and  not  a  quitclaim  deed. 
3  G.   L.   c.   282. 


Collection  of  Local  Taxes  391 

G.L.c.  60,  §§85,86] 

of  his  interest  or  after  causing  a  copy  of  the  notice  to  be  filed  and 
recorded  as  provided  in  the  preceding  section,  shall  forthwith  notify 
the  board  by  which  the  tax  or  assessment  was  laid,  which  shall 
forthwith  reassess  it  as  provided  in  section  seventy-seven  of  chapter 
fifty-nine.  If  such  invalidity  was  caused  by  an  error,  omission  or 
informality  in  the  proceedings  of  the  collector,  he  shall,  after  obtain- 
ing such  release  or  after  filing  and  recording  such  copy,  forthwith  col- 
lect the  unpaid  tax  or  assessment  in  conformity  to  law.  If  the  collector 
has  reasonable  cause  to  believe  that  a  tax  title,  held  by  a  town  under 
a  sale  or  taking  for  non-payment  of  tax,  is  invalid  by  reason  of  any 
error,  omission  or  informality  in  the  assessment,  sale  or  taking,  he 
may  disclaim  and  release  such  title  by  an  instrument  under  his  hand 
and  seal,  duly  recorded  in  the  registry  of  deeds. 

A  defect  in  the  collector's  deed,  consisting  of  an  incorrect 
•  recital  of  the  cause  of  sale,  is  an  "  error,  omission  or  informality 
in  the  .  .  .  sale  "  within  the  meaning  of  the  last  sentence  of 
section  eighty-four  of  the  statute  and  justifies  the  filing  of  a 
disclaimer  under  that  statute.1  The  deed  is  the  culminating 
act  or  finishing  touch  of  the  sale  without  which  it  would  be 
incomplete.  The  assessors  may  re-assess  a  tax  under  the  first 
sentences  of  the  statute  whether  the  title  is  held  by  a  city  or 
town  and  the  collector  has  disclaimed  under  the  last  sentence, 
or  by  a  third  party  and  the  collector  has  given  notice  of  invalid- 
ity under  the  two  preceding  sections.2 

Lien  of  Co-Tenants 

Section  85.  A  tenant  in  common  or  joint  tenant,  who  pays  the 
entire  tax  assessed  upon  land  held  jointly  or  in  common,  shall 
have  a  lien  upon  the  interest  of  each  of  his  co-tenants,  to  secure 
the  payment  to  him  of  the  proportion  of  such  tax  payable  by  each 
of  said  co-tenants  respectively,  with  the  costs  of  enforcing  the  same; 
but  any  person  whose  tax  has  been  so  paid  by  his  co-tenant  shall 
have  the  same  right  to  recover  it  back  if  illegally  assessed  as  he 
would  have  had  if  the  tax  had  been  paid  under  a  protest  by  him 
in  writing. 

Section  86.  Such  lien  may  be  enforced  in  the  manner  provided 
in  chapter  two  hundred  and  fifty-four  for  enforcing  liens  on  build- 

1  Nickerson  v.  Hyde  Park.  209  Mass.  3«5  (1911). 

2  Nickerson  v.  Hyde  Park,  209  Mass.  365  (1911). 


392  Taxation    in    Massachusetts 

[G.  L.  c.  60,  §  8b 
ings  and  land  under  written  contracts  for  the  erection,  alteration, 

repair  or  removal  of  buildings  or  structures;  but  shall  be  dissolved, 

unless  the  person  desiring  to  avail  himself  thereof,  or  some  one  in 

his  behalf,  subscribes  and  makes  oath  to  a  certificate  setting  forth 

a  description,  sufficiently  accurate  for  identification,  of  the  property 

intended  to  be  covered  by  the  lien,  the  names  of  the  several  co-tenants 

and  the  interest  of  each  therein,  the  amount  of  the  tax  paid,  and  the 

amount  due  from  each  co-tenant,  and  within  thirty  days  after  the 

day  of  payment  of  said  tax  records  such  certificate  in  the  registry 

of  deeds,  and  unless  a  bill  in  equity  to  enforce  the  lien  is  commenced 

within  sixty  days  after  the  date  of  recording  said  certificate.    Such 

lien  shall  have  priority  over  all  liens  and  encumbrances  arising  after 

the  riling  of  the  certificate  required  by  this  section,  but  shall  not  be 

valid  against  a  mortgage  actually  existing  and  duly  recorded  prior 

to  the  recording  of  said  certificate,  or  against  any  lien  existing  under 

section  one  or  section  three  of  chapter  two  hundred  and  fifty-four 

prior  to  the  filing  of  the  certificate.    No  person  except  the  co-tenant 

who  paid  the  tax,  or  a  person  claiming  by,  through  or  under  him, 

shall  be  made  a  party  plaintiff  in  a  bill  brought  under  this  section. 

When,  after  land  held  by  tenancy  in  common  has  been  sold 
for  non-payment  of  taxes,  one  of  the  co-tenants  pays  the  purchaser 
the  precise  amount  necessary  to  redeem  the  land  and  takes  a  deed 
of  release,  in  the  absence  of  evidence  to  the  contrary  such  a  trans- 
action will  be  taken  to  be  a  redemption  and  the  tax  lien  discharged, 
unless  the  co-tenants  of  the  person  making  the  payment  refuse 
to  contribute  their  share.1  If  a  co-tenant  purchases  the  tax 
title  from  a  third  party  to  whom  the  original  purchaser  has  con- 
veyed, whether  he  would  acquire  a  paramount  title  is  a  question 
not  free  from  difficulty. 

When  there  has  been  a  deed  of  the  tax  title  to  one  co-tenant 
put  on  record,  it  is  not  necessary  for  him  to  take  the  statutory 
steps  to  preserve  the  lien  for  contribution;  for  he  already  has 
the  record  title,  and  unless  his  co-tenants  make  or  tender  con- 
tribution they  have  no  interest  in  the  property  which  they  can 
enforce,  either  at  law  or  in  equity.2 

One  owner  in  common  who  pays  the  taxes  may  have  the 
lien  enforced  against  the  widow  of  his  co-tenant,  although  the 

1  Hurley  v.  Hurley,  148  Mass.  444  (1889). 

2  Hurley  v.  Hurley,  148  Mass.  444  (1889). 


Collection  of  Local  Taxes  393 

G.L.c.  60,  §§87-90  inc.] 

real  estate  of  her  husband  has  never  been  set  off  to  her  in  the 
statutory  manner.3 

Decision  of  Town  whether  to  Sell  or  Take 

Section  87.  A  city  or  town  may,  by  ordinance  or  by-law,  re- 
spectively, direct  whether  its  collector  shall  exercise  the  power  of  sale 
or  the  power  of  taking  to  enforce  the  lien  for  taxes;  and  in  default 
of  such  ordinance  or  by-law  the  collector  may  exercise  either  power 
at  his  discretion;  but  the  passage  of  any  such  ordinance  or  by-law 
shall  not  render  invalid  any  proceedings  then  pending. 

MISCELLANEOUS   PROVISIONS 
Commission  of  Tax  List  to  Sheriff 

Section  88.  When  the  tax  list  and  warrant  of  the  assessors  is 
committed  to  the  sheriff  or  his  deputy,  he  shall  forthwith  post,  in  some 
public  place  in  the  town,  an  attested  copy  of  said  list  and  warrant; 
and  shall  make  no  distress  for  a  tax  within  thirty  days  thereafter. 

Section  89.  If  a  person  pays  his  tax  within  said  thirty  days, 
the  officer  shall  receive  from  him  for  his  fees  five  per  cent  on  the  sum 
assessed;  but  if  a  tax  remains  unpaid  after  said  thirty  days,  he  shall 
collect  it  by  distress  or  imprisonment,  or  by  sale  of  land  as  a  collector 
would  do.  The  officer  may  also  levy  his  fees  for  service  and  travel 
in  the  collection  of  each  person's  tax,  as  in  other  cases  of  distress  and 
commitment,   or   sale  of   land. 

Section  90.  If  a  town  appoints  its  treasurer  as  the  collector 
of  taxes,  he  may  issue  his  warrants  to  the  sheriff  of  the  county,  or 
his  deputy,  or  to  any  constable  of  the  town,  returnable  in  sixty  days, 
requiring  them  to  collect  any  or  all  taxes  due.  Such  warrants  shall 
be  substantially  in  the  same  form,  and  shall  confer  the  same  powers 
as  warrants  by  assessors  to  collectors. 

Sections  eighty-eight  and  eighty-nine  evidently  have  refer- 
ence t.o  action  under  that  portion  of  section  fifty-three  of  chap- 
ter fifty-nine  which  provides  that  if  no  collector  has  been  chosen 
and  there  is  no  constable  the  assessors  shall  commit  their  tax 
list  and  warrant  to  the  sheriff  or  his  deputy.1 

Section  ninety  should  not  be  confused  with  section  thirty- 

3  Naylor  v.  Nourse,  231  Mass.  341  (1918). 
1  Supra  page  280. 


394  Taxation   in   Massachusetts 

[G.L.c.  60,  §91 

four  of  the  same  chapter,  which  relates  to  the  employment  of 
a  sheriff  or  constable  to  enforce  the  collection  of  a  particular 
tax  which  has  remained  unpaid  for  fourteen  days  after  demand;2 
whereas  this  statute  relates  to  the  delegation  of  all  or  part  of 
the  collector's  functions.  If  this  statute  does  not  authorize  a 
constable  to  make  an  arrest  outside  of  his  own  town,  it  at  any 
rate  does  not  limit  the  powers  of  officers  under  warrants  given 
for  a  special  purpose  by  authority  of  section  thirty-four.3 

A  town  may  authorize  its  collector  of  taxes  to  use  all  means 
of  collecting  taxes  which  a  town  treasurer  may  use  when  ap- 
pointed a  collector  of  taxes,  although  the  treasurer  and  the 
collector  are  different  persons,4  and  after  such  a  vote  the  col- 
lector may  issue  general  warrants  to  the  officers  designated 
above;  but  a  collector  may  issue  such  warrants  only  in  rela- 
tion to  taxes  assessed  for  the  year  to  which  the  vote  applied, 
and  cannot  lawfully  commit  the  taxes  of  previous  years  to  a 
sheriff  or  constable  by  general  warrant.5 

Restraint  of  Foreign  Corporations  and  Non-Residents 

Section  91.  When  any  foreign  corporation  or  non-resident  per- 
son, doing  business  in  the  commonwealth,  shall  for  sixty  days  neglect, 
refuse  or  omit  to  pay  a  tax  lawfully  assessed  and  payable,  any  court 
having  jurisdiction  ir.  equity  may  on  petition  of  the  collector  of  taxes 
of  the  town  where  the  tax  is  assessed  restrain  said  corporation  or 
person  from  doing  business  in  the  commonwealth  until  said  tax,  with 
all  incidental  costs  and  charges,  shall  have  been  paid.  Service  of 
process  upon  any  such  petition  may  be  made  by  any  officer  duly  quali- 
fied to  serve  process,  by  leaving  a  duly  attested  copy  thereof  at  the 
place  where  the  business  is  carried  on. 

This  statute  was  first  enacted  in  1902  and  proved  useful  in 
enforcing  the  collection  of  taxes  assessed  upon  foreign  corpora- 
tions which  were  desirous  of  continuing  to  do  business  in  this 
commonwealth  but  which  had  covered  their  tangible  property 
with  such  a  network  of  perhaps  fraudulent  assignments  that  an 
officer  might  hesitate  to  seize  it  on  distress  or  attachment.  Under 
the  present  system  of  taxing  foreign  corporations,  the  utility  of 

2  Supra  page  340. 

3  Beard  v.  Seavey,  191  Mass.  503  (1906). 

4  G.  L.  c.  41,  §  38,  supra  page  158. 

5  Smith  v.  Keniston,  100  Mass.  172  (1868). 


Collection  of  Local  Taxes  395 

G.L.c.  60,  §§  92,93] 

this  provision  is  less  apparent.  There  is  however  no  doubt  that 
a  state  may  constitutionally  impose  such  a  liability  as  this  as 
a  condition  upon  which  a  foreign  corporation  not  engaged  in 
interstate  commerce  is  permitted  to  do  business  within  its  limits. 

The  statute  has  not  been  used  frequently,  if  at  all,  against 
non-resident  persons,  and  there  may  be  greater  doubts  of  its 
constitutionality  as  applied  to  them,  for  one  state  cannot  con- 
stitutionally exclude  residents  of  other  states  from  doing  busi- 
ness within  its  limits,  or  impose  greater  liability  upon  them  than 
is  imposed  upon  its  own  citizens.1 

The  provision  that  service  may  be  made  by  leaving  a  copy 
of  the  petition  at  the  place  where  the  business  is  carried  on  is 
reasonable  and  valid,  and  is  not  repealed  by  a  subsequent  gen- 
eral enactment  concerning  the  service  of  process  upon  foreign 
corporations.2 

Appointment  of  Deputy  Collectors 

Section  92.  The  board  of  aldermen  or  selectmen  may  empower 
any  officer  authorized  to  collect  taxes  to  appoint  such  deputies  as  he 
deems  expedient.  Any  such  deputy  may  be  a  woman.  Such  depu- 
ties shall  give  bond  for  the  faithful  performance  of  their  duties  in 
such  sum  as  the  aldermen  or  selectmen  may  prescribe  and  shall  have 
the  powers  of  collectors. 

The  appointment  of  employees  of  the  collector  of  taxes  of 
any  city,  except  Boston,1  is  not  subject  to  the  regulations  of 
the  board  of  civil  service  commissioners.2 

Withholding  Money  Due  Persons  Owing  Taxes 

Section  93.  The  treasurer  or  other  disbursing  officer  of  any  town 
may,  and  if  so  requested  by  the  collector,  shall,  withhold  payment  of 
any  money  payable  to  any  person  whose  taxes  are  then  due  and  wholly 
or  partly  unpaid  to  an  amount  not  exceeding  the  unpaid  tax  with  inter- 
est and  costs.  The  sum  withheld  shall  be  paid  or  credited  to  the  collec- 
tor, who  shall,  if  required,  give  a  written  receipt  therefor.  The  person 
taxed  may  in  such  case  have  the  same  remedy  as  if  he  had  paid  such 

1  Supra,  Part  I,  §  17. 

2  Scollard  v.  American  Felt  Co.,  194  Mass.  127  (1907). 

1  St.  1913,  c.  672. 

2  G.  L.  c.  31,  §  5. 


396  Taxation    in    Massachusetts 

[G.L.c.  GO,  §§94,95 
tax  after  a  levy  upon  his  goods.  The  collector's  rights  under  this 
section  shall  not  be  affected  by  any  assignment  or  trustee  process. 

Apart  from  the  provisions  of  this  section  a  city  or  town  has 
not  the  power  to  set  off  the  amount  of  unpaid  taxes  against  a 
claim  against  it  for  money  due  the  person  assessed.1 

Collector's  Accounts  to  be  Exhibited.  Bi-Monthly 

Section  94.  The  aldermen  or  selectmen  may  require  the  collector 
once  in-  two  months  to  exhibit  to  them  a  true  account  of  all  money 
received  on  the  taxes  committed  to  him,  and  to  produce  the  treas- 
urer's receipts  for  all  money  paid  into  the  treasury  by  him. 

Personal  Liability  of  Collector 

Section  95.  The  collector  shall  be  credited  with  all  sums  abated; 
with  the  amount  of  taxes  assessed  upon  any  person  committed  to 
jail  for  non-payment  of  his  tax  within  one  year  from  the  receipt 
of  the  tax  list  by  the  collector,  and  who  has  not  paid  his  tax;  with 
any  sums  which  the  town  may  see  fit  to  abate  to  him,  due  from  persons 
committed  after  the  expiration  of  a  year;  with  all  sume  withheld  by 
the  treasurer  of  a  town  under  section  ninety  -three ;  and  with  the 
amount  of  the  taxes  and  charges  where  land  has  been  purchased  or 
taken  by  the  town  for  non-payment  of  taxes.  When  a  collector  is 
credited  with  the  amount  of  taxes  assessed  upon  any  person  committed 
to  jail  for  the  non-payment  of  his  tax,  who  has  not  paid  his  tax, 
said  collector  shall  also  be  paid*  and  credited  with  the  fees  and  charges 
which  have  become  a  part  of  said  taxes  and  to  which  he  or  the  officer 
acting  under  his  warrant  is  entitled. 

In  an  action  by  the  town  against  the  collector,  insolvency  or 
poverty  of  a  person  assessed  is  no  defense  to  the  collector,  if  he 
allows  a  year  to  elapse  without  arresting  such  person;1  but  if 
the  collector  is  removed  within  a  year  of  the  time  that  the  tax 
list  is  committed  to  him,  such  insolvency  or  poverty  can  be 
shown  in  justification.2  A  collector  de  facto  who  has  not  been 
legally  appointed  is  accountable  to  the  town  only  for  the  taxes 
actually  collected  by  him.3     If  the  warrant  is  insufficient  the 

1  Pierce  v.  Boston,  3  Met.  520  (1842) ;  Commonwealth  v.  Phoenix  Bank,  11 
Met.  129  (1846). 

1  Colerain  v.  Bell,  9  Met.  499  (1845). 

2  Colerain  v.  Bell,  9  Met.  499  (1845). 

3  Lincoln  v.  Chapin,  132  Mass.  470  (1882). 


Collection  of  Local  Taxes  397 

G.L.c.  60,  §95] 

collector  is  justified  in  not  serving  it,  but  if  he  proceeds  to  col- 
lect any  part  of  the  tax  he  is  accountable  therefor.4  The  defal- 
cation of  a  collector  may  be  the  subject  of  set-off  in  an  action 
by  him  against  the  town;5  and  it  is  a  fiduciary  debt  not  affected 
by  his  discharge  in  bankruptcy.6  If  a  treasurer  and  collector 
pays  his  private  debts  with  the  money  he  has  collected,  using 
the  town's  checks  drawn  by  himself,  the  persons  who  receive  such 
checks  must  refund  the  amount  thereof  to  the  town,  whether 
the  checks  are  payable  directly  to  the  creditor  7  or  to  the  treas- 
urer and  indorsed  by  him.8 

An  action  of  tort  by  an  individual  citizen  against  the  collector 
for  arresting  his  person  or  distraining  bis  property  in  enforcing 
the  payment  of  a  tax  is  not  an  effectual  means  of  contesting  the 
validity  of  the  proceedings  for  assessing  the  tax.  If  the  col- 
lector is  acting  in  pursuance  of  a  warrant  from  the  assessors, 
and  the  assessors  have  jurisdiction  of  the  subject-matter  and  the 
process  is  regular  on  its  face,  the  collector  is  not  bound  to  ex- 
amine into  the  legality  of  the  previous  proceedings  and  cannot 
be  affected  by  the  existence  of  any  fact  not  disclosed  by  the  war- 
rant which  deprives  them  of  jurisdiction  in  the  particular  case, 
and  he  is  protected  by  the  warrant  from  liability  for  its  execu- 
tion.9 

A  warrant  that  is  bad  on  its  face  is  no  protection  to  the  col- 
lector;10 but  a  warrant  will  not  be  vitiated  by  slight  and  tech- 
nical defects;11  and  it  is  not  required  to  be  in  a  precise  and  elab- 
orate form.12  It  need  not  recite  the  facts  necessary  to  authorize 
its  issuance;13  and  it  is  not  invalid  for  omitting  to  state  the  steps 

*  Williamstown  v.  Willis,  15  Gray  427  (1860). 
5  Donelson  v.  Colerain,  4  Met.  430  (1842). 
8  Morse  v.  Lowell,  7  Met.  152  (1843). 

7  Newburyport  v.  Fidelity  Insurance  Co.,  197  Mass.  596  (1908). 

8  Newburyport  v.  Spear,  204  Mass.  146  (1910). 

9  Sprague  v.  Bailey,  19  Pick.  436  (1837) ;  Upton  v.  Holden,  5  Met.  360  (1842) ; 
Howard  v.  Proctor,  7  Gray  128  (1856);  Eames  v.  Johnson,  4  Allen  382  (1862); 
Hubbard  v.  Garfield,  102  Mass.  72  (1869);  Rawson  v.  Spencer,  113  Mass.  40 
(1873) ;  Cone  v.  Forest,  126  Mass.  97  (1879).  A  tax-warrant  otherwise  valid  on  its 
face,  addressed  to  one  as  "constable  and  collector"  who  is  authorized  to  act  as 
collector  at  the  time  of  its  delivery  to  him,  although  not  at  the  time  it  bears 
date,  will  protect  him  from  liability  for  acts  as  collector  under  it.  Hays  v.  Drake, 
6  Gray  387  (1856). 

!<>  Eames  v.  Johnson,  4  Allen  382  (1862). 

11  Barnard  v.  Graves,  13  Met.  85  (1847). 

12  For  a  fuller  discussion  of  the  form  and  requirements  of  the  warrant  see 
G.  L.  c.  59,  §  55,  supra  page  280. 

13  Cheever  v.  Merritt,  5  Allen  563  (1863);  Sherman  v.  Torrey,  99  Mass.  472 
(1868). 


398  Taxation   in<  Massachusetts 

[G.  L.  c.  60,  §  95 
that  the  collector  is  required  to  take.14  If  its  direction  to  the 
collector  is  to  act  in  violation  of  law,  he  is  not  liable  to  the 
person  assessed  if  he  collects  the  tax  in  accordance  with  law, 
in  disregard  of  the  warrant.15 

When  the  collector  issues  a  warrant  to  a  deputy  sheriff  or  a 
constable,  the  warrant  should  recite  the  facts  necessary  to  au- 
thorize its  issuance,  but  if  it  does  not  the  officer  may  prove  the 
facts  if  he  can.16 

The  proper  function  of  an  action  of  tort  against  the  col- 
lector is  to  act  as  a  remedy  for  a  violation  of  the  provisions  of 
law  relating  to  the  collection  of  taxes,  and  it  is  the  only  remedy 
for  such  violation ;  for  a  tax  lawfully  assessed  but  extorted  from 
the  taxpayer  by  unlawful  methods  cannot  be  recovered  from  the 
city  or  town.17  The  collector  is  personally  liable  for  arresting 
a  person  who  exhibits  sufficient. goods  on  which  he  can  levy;18 
or  for  distraining  and  selling  goods  in  excess  of  the  requirements 
of  the  case;19  or  for  any  interference  with  individual  rights 
which  constitute  a  substantial  departure  from  the  requirements 
of  the  statutes  prescribing  his  duties.20  In  an  action  based  on 
the  collector's  illegal  acts  his  return  is  only  prima  facie  evidence 
of  his  doings  and  may  be  controlled  by  a  greater  weight  of  evi- 
dence contradicting  it.21  If  however  it  is  impeached  by  evidence 
of  facts  which  would  equally  well  justify  the  collector,  the  vari- 
ance is  immaterial.22 

It  would  seem  that  when  a  collector  by  duress  enforces  pay- 
ment of  an  invalid  tax,  at  least  when  the  circumstances  are  such 
that  he  is  not  protected  by  his  warrant,  the  person  paying  it 
might  recover  it  back  in  an  action  of  contract  for  money  had 
and  received.    As  such  a  remedy  would  be  less  effective  than 

14  King  v.  Whitcomb,  1  Met.  328  (1840);  Westhampton  v.  Searle,  127  Mass. 
502  (1879);  Leominster  v.  Conant,  139  Mass.  384  (1885). 

15  Barnard  v.  Graves,  13  Met.  85  (1847). 

"  Cheever  v.  Merritt,  5  Allen  563  (1863);  Sherman  v.  Torrey,  99  Mass.  472 
(1868).  If  the  warrant  contains  no  sufficient  recitals  and  there  was  no  authority 
in  fact  for  its  issuance,  a  sheriff  who  receives  and  detains  in  the  county  jail 
a  person  arrested  by  a  constable  is  personally  liable.  Smith  v.  Keniston,  100  Mass. 
172  (1868). 

«  Dunbar  v.  Boston,  112  Mass.  75  (1873). 

18  Lothrop  v.  Ide,  13  Gray  93  (1859) ;  Hall  v.  Hall,  3  Allen  5  (1861). 

"  Cone  v.  Forest,  126  Mass.  97  (1879);  Warr  v.  Collector  of  Taunton,  234 
Mass.  279  (1920). 

20  Pierce  v.  Benjamin,  14  Pick.  356  (1833) ;  Wilson  v.  Shearer,  9  Met.  504 
(1845);  Barnard  v.  Graves,  13  Met.  85  (1847). 

21  Lothrop  v.  Ide,  13  Grav  93  (1859). 

22  Barnard  v.  Graves,  13  Met.  85  (1847). 


Collection  of  Local  Taxes  399 

G.L.c.  60,  §§96,97] 

an  action  of  tort  against  the  collector,  because  the  damages 
would  include  only  the  amount  of  the  tax  and  interest,  and  less 
certain  than  an  action  of  contract  against  the  city  or  town  be- 
cause a  judgment  might  be  more  difficult  to  enforce,  it  does  not 
seem  to  have  been  employed  against  city  or  town  collectors;  but 
it  has  been  held  that  such  an  action  would  lie  against  an  officer 
of  the  state  who  by  duress  enforced  payment  of  a  tax  levied  by 
virtue  of  an  unconstitutional  statute.23 

A  collector  cannot  be  held  personally  liable  on  a  contract 
signed  by  him  as  collector,  when  the  parties  contemplated  that 
the  obligation  was  the  town's.24 

Removal  of  Collector 

Section  96.  If  a  collector  becomes  insane,  absconds  or  removes 
from  the  town  or  in  the  judgment  of  the  aldermen  or  selectmen  is 
about  to  so  remove  or  is  otherwise  unable  to  discharge  his  duty,  or 
if  he  refuses  on  demand  to  exhibit  to  the  aldermen  or  selectmen  his 
books,  vouchers  and  accounts  of  collections  as  provided  in  this  chap- 
ter, the  aldermen  or  selectmen  may  remove  him  from  office. 

Commission  of  Uncollected  Taxes  to  Collector's 

Successor 

Section  97.      If  a  collector  dies  or  is  removed  from  office  or  if 

the  term  of  office  of  a  collector  who  is  paid  by  a  fixed  salary  expires 

before  the  collection  of  the  taxes  committed  to  him  is  completed,  the 

assessors  shall  commit  to  his  successor  the  list  of  taxes  uncollected 

with  their  warrant.     If  the  collector  is  his  own  successor  he  shall 

complete  the  collection  of  the  taxes  as  a  part  of  the  duties  of  his  new 

term  of  office  and  not  as  a  part  of  the  duties  of  his  former  term  of 

office. 

Whether  taxes  have  been  collected  by  a  collector  prior  to 
his  death  is  a  fact  which  may  be  proved  by  any  competent  evi- 
dence. Proof  that  payment  had  been  entered  on  the  collector's 
books,  or  that  the  collector  had  given  the  taxpayer  a  receipt, 
or  evidence  of  witnesses  who  saw  the  payment  would  be  com- 
petent evidence;  but  admissions  by  the  collector  that  the  tafrx 
had  been  paid  would  not  be  competent.1 

23  Cunningham  v.  Munroe,  13  Gray  471  (1860).  An  action  against  the  col- 
lector is  the  recognized  method  of  contesting  the  legality  of  a  federal  tax. 

24  Rogers  v.  French.  214  Mass.  337  (1913). 
J  Lawrence  v.  Kimball,  1  Met.  524  (1840). 


400  Taxation    in   Massachusetts 

[G.  L.  c.  60,  §  98 

Remedies  for  Taxes  Illegally  Assessed 

Section  98.  No  action  to  recover  back  a  tax  shall  be  main- 
tained, except  as  provided  in  sections  sixty  and  eighty-five,  unless 
commenced  within  three  months  after  payment  of  the  tax  nor  unless 
such  tax  is  paid  either  after  an  arrest  of  the  person  paying  it,  a  levy 
on  his  goods,  a  notice  of  a  sale  of  his  land,  a  written  protest  signed 
by  him,  or  a  withholding  of  money  due  him  under  section  ninety- 
three.  In  an  action  founded  on  an  error  or  irregularity  in  the  assess- 
ment or  apportionment  of  a  tax,  only  the  amount  in  excess  of  the  tax 
for  which  the  plaintiff  was  liable  shall  be  recoverable;  and  no  sale, 
contract  or  levy  shall  be  avoided  solely  by  reason  of  such  error  or 
irregularity. 

ACTION  AT  COMMON  LAW  TO  RECOVER  BACK  A  TAX 

The  method  of  contesting  the  validity  of  a  tax  so  familiar 
in  recent  years  of  paying  the  tax  under  protest  and  bringing 
an  action  of  contract  against  the  city  or  town  for  money  had  and 
received  to  recover  it  back  is  of  comparatively  recent  origin.  Up 
to  the  end  of  the  eighteenth  century  it  was  generally  considered 
that  a  corporation,  whether  municipal  or  private,  could  not  be 
bound  except  by  writing  under  its  corporate  seal,  and  for  that 
and  other  more  or  less  technical  reasons  could  not  be  liable  in  an 
action  based  upon  a  tort  or  a  simple  or  an  implied  contract.  It 
was  the  practice  when  one  had  a  grievance  against  a  corporation 
to  bring  an  action  against  the  individual  officers  or  agents  of 
the  corporation  who  committed  the  wrong;  in  case  of  taxes  il- 
legally assessed  and  collected  by  distress  or  imprisonment  to 
bring  an  action  of  trespass  against  the  assessors.1  When  corpo- 
rations of  the  modern  type  began  to  become  really  important 
factors  in  the  life  of  the  people,  to  have  exempted  them  wholly 
from  liability  except  upon  agreement  under  the  corporate  seal 
would  have  led  to  such  undesirable  results  that  the  academic 
notion  of  corporate  powers  yielded  swiftly  to  more  practical 
views,  and  the  technical  difficulties  were  readily  swept  away. 

1  In  Stetson  v.  Kempton,  13  Mass.  272  (1816)),  an  action  of  trespass  was 
maintained  against  the  assessors  of  a  town  for  assessing;  a  tax  in  accordance 
with  an  invalid  vote  of  the  town,  whereby  plaintiff's  property  was  distrained 
and  sold,  the  court  saying:  "  If  they  (the  assessors)  are  not  liable  to  an  action 
for  causing  an  arrest,  or  the  seizure  of  property,  for  the  non-payment  of  an 
illegal  tax,  it  is  difficult  to  find  any  remedy  for  an  injured  citizen  in  cases  of 
this  nature."  As  to  liability  of  assessors  for  assessing  an  illegal  tax  see  supra 
page  314. 


Collection  of  Local  Taxes  401 

G.  L.  c.  60,  §  98] 

In  1807  a  private  corporation  was  first  held  liable  in  Massa- 
chusetts on  an  implied  contract,2  and  three  years  later  in  tort,3 
and  soon  afterward  we  find  actions  of  assumpsit4  and  trespass 
on  the  case 5  being  maintained  against  municipal  corporations. 
In  1823  a  statute  was  enacted  materially  restricting  the  personal 
liability  of  assessors  for  wrongfully  assessing  a  tax,6  and  almost 
immediately  thereafter  it  was  held  that  an  action  of  assumpsit 
for  money  had  and  received  could  be  maintained  against  a  parish 
to  recover  the  amount  of  a  tax  illegally  assessed  against  a  person 
who  was  not  a  member  of  the  parish  and  collected  by  distress 
and  sale  of  his  property.7  This  was  probably  the  authority  upon 
which  since  that  time  many  similar  actions  have  been  brought 
against  cities  and  towns;8  and  it  has  been  uniformly  held 
that  when  a  tax  is  wholly  void  and  has  been  paid  under  duress 
an  action  lies  to  recover  it  back.9 

The  action  however  is  strictly  an  action  for  money  had  and 
received  and  not  one  for  damages.  When  a  tax  illegally  assessed 
is  collected  by  distress  and  sale  of  the  property  of  a  person  so 
assessed,  he  can  recover  only  the  amount  of  the  tax  and  interest, 
although  the  value  of  the  property  sold  may  have  been  far 
greater  than  what  it  brought  at  the  forced  sale,  and  the  costs 
of  the  distress  as  well  as  the  amount  of  the  tax  were  deducted 
from  the  proceeds.10  When  the  property  distrained  is  not  actu- 
ally seized,  and  the  sale  is  void  on  its  face,  the  owner  can  recover 
nothing  as  neither  his  possession  nor  ownership  in  the  property 
has  been  interfered  with.11 

2  Gray  v.  Portland  Bank,  3  Mass.  364    (1807). 

3  Riddle  v.  Proprietors  of  the  Locks  and  Canals,  7  Mass.  169  (1810). 

4  Fiske  v.  Needham,  11  Mass.  452  (1814);  Taft  v.  Montague,  14  Mass. 
281  (1817);  Jones  v.  Lancaster,  4  Pick.  149  (1826).  In  the  two  cases  first  cited 
the  plaintiffs  did  not  recover;  but  it  was  assumed  that  the  defendant  was 
liable  to  the  action  if  the  facts  warranted  it. 

5  Baker  v.  Boston,  12  Pick.  184  (1835);  Thayer  v.  Boston,  19  Pick.  511 
(1837);  Anthony  v.  Adams,  1  Met.  284   (1840). 

6  St.  1823,  c.  138,  now  G.  L.  c.  59,  §  87,  supra  page  314. 

7  Sumner  v.  First  Parish  in  Dorchester,  4  Pick.  361   (1826). 

8  Lincoln  v.  Worcester,  8  Cush.  55,  60   (1851). 

9  Preston  v.  Boston,  12  Pick.  7  (1831),  and  other  cases  too  numerous  to. 
cite.    The  most  recent  is  Williams  v.  Acton,  219  Mass.  520,  524  (1914). 

10  Dow  v.  First  Parish  in  Sudbury,  5  Met.  73  (1842);  Shaw  v.  Becket,  7 
Cush.   442    (1851). 

11  Noyes  v.  Haverhill,  11  Cush.  338  (1853). 


402  Taxation    in    Massachusetts 

[G.  L.  c.  60,  §  98 
ACTION  AT  COMMON   LAW   IN   CASE   OF   OVER- ASSESSMENT 

There  is  an  important  limitation  upon  the  right  to  main- 
tain an  action  of  contract  at  common  law  to  recover  a  tax  illegally 
assessed;  the  action  does  not  lie  unless  the  entire  tax  assessed 
against  the  plaintiff  is  void.  If  the  taxpayer's  complaint  is 
merely  that  the  tax  assessed  upon  him  is  excessive  in  amount, 
whether  such  excess  is  due  to  the  over-valuation  of  property 
which  he  owns  and  which  is  subject  to  taxation,  or  the  inclusion 
in  the  tax  assessed  against  him  of  property  which  he  does  not 
own  or  which  is  not  subject  to  taxation,  or  some  error  or  irreg- 
ularity in  the  assessment  of  part  of  his  property,  his  only  remedy 
is  a  petition  for  abatement  in  the  statutory  form.  This  propo- 
sition was  established  within  two  years  of  the  time  when  it 
was  first  decided  that  such  an  action  would  lie  at  all,12  and  there 
are  few  legal  doctrines  that  have  been  more  frequently  re- 
iterated. 

This  doctrine  is  not  based  upon  technicalities,  nor  is  its 
principal  service  a  trap  for  unwary  litigants.  The  statutes  have 
provided  a  procedure  for  the  abatement  of  taxes,  have  carefully 
guarded  the  rights  of  the  public  by  requiring  the  filing  of  a 
sworn  list  as  preliminary  to  an  abatement  and  the  bringing  of 
the  petition  within  six  months  of  the  date  of  the  tax  bill,  have 
arranged  for  speedy  hearing  and  disposition  of  the  application 
and  have  endeavored  to  secure  a  tribunal  better  qualified  to 
pass  upon  the  questions  involved  than  a  jury.  If  the  taxpayer's 
remedy  by  action  of  contract  at  common  law  was  concurrent 
with  that  by  petition  for  abatement  he  might  by  bringing  suit 
any  time  within  six  years  from  the  time  of  payment,  after  the 
assessors  had  been  changed  and  perhaps  some  of  them  had  died, 
and  evidence  had  been  lost,  and  without  filing  a  sworn  list, 
transfer  the  duty  and  business  of  forming  a  valuation  and  assess- 
ing and  levying  taxes  from  the  domestic  tribunal  to  which  the 
law  has  committed  it  to  a  court  of  justice  settling  facts  on  evi- 
dence by  a  jury,  and  with  very  inadequate  means  for  the  per- 
formance of  that  duty  to  the  satisfaction  of  anybody.  The 
existence  of  the  statutory  provisions  for  abatement,  with  their 
carefully  drawn  restrictions  and  conditions,  is  almost  equivalent 
to  a  declaration  of  the  legislative  intention  that  another  unre- 

12  Osborn  v.  Danvers,  6  Pick.  98  (1828). 


Collection  of  Local  Taxes  403 

G.L.c.  60,  §98] 

stricted  remedy  shall  not  exist.  The  decision  that  such  action 
will  not  lie  is  not  based  upon  the  mere  form  of  the  remedy- 
where  a  real  grievance  is  shown,  but  it  results  from  a  view  of 
the  fundamental  principles  on  which  the  whole  system  of  public 
taxation  is  founded.13 

There  are  however  some  limitations  and  qualifications  upon 
this  rule.  Real  estate  and  personal  property  are  treated  as 
separate  objects  of  taxation,  so  that  a  person  who  is  not  taxable 
for  any  real  estate  but  is  wrongly  assessed  upon  a  parcel  of 
land  which  he  does  not  own  or  which  is  exempt  from  taxation 
may  pay  the  tax  under  protest  and  recover  it  back  notwith- 
standing that  he  is  rightly  taxed  on  personal  property  in  the 
same  city  or  town;14  but  separate  parcels  of  real  estate  are  not 
considered  as  separate  objects  of  taxation  for  this  purpose  even 
if  they  are  separately  assessed,  and  a  person  who  is  rightly 
taxed  upon  one  parcel  cannot  maintain  an  action  to  recover 
back  a  tax  upon  another  parcel  in  the  same  city  or  town  on 
which  he  was  improperly  assessed.15 

The  same  rule  applies  to  personal  property.  An  inhabitant 
of  a  city  or  town  who  is  properly  taxable  on  his  poll  or  on  some 
items  of  personal  estate  cannot  maintain  an  action  of  contract 
to  recover  back  a  tax  upon  certain  other  items  of  personal  estate 
for  which  he  should  not  have  been  taxed;16  and  a  non-resident 
who  is  wrongly  taxed  on  certain  items  of  personal  property  in 
a  city  or  town  is  left  to  his  remedy  by  petition  for  abatement 
if  he  owns  any  personal  property  which  is  properly  taxed  in 
the  city  or  town  in  question;17  but  a  non-resident  who  has  no 

13  Lincoln   v.  Worcester,  8  Cush.  55   (1851). 

14  Preston  v.  Boston,  12  Pick.  7  (1831);  Middlesex  Railroad  v.  Charles- 
town,  8  Allen  330  (1864);  Hicks  v.  Westport,  130  Mass.  478  (1881);  Ingram 
v.  Cowles,  150  Mass.  155   (1889). 

15  Boston  Water  Power  Co.  v.  Boston,  9  Met.  199  (1845);  Howe  v.  Boston, 
7  Cush.  273  (1851);  Lincoln  v.  Worcester,  8  Cush.  55  (1851);  Salmond  v. 
Hanover,  13  Allen  119  (1866) ;  Massachusetts  General  Hospital  v.  Somerville, 
101  Mass.  319  (1869) ;  Chapel  of  the  Good  Shepherd  v.  Boston,  120  Mass.  212 
(1876);  Richardson  v.  Boston,  148  Mass.  508  (1889);  Schwartz  v.  Boston,  151 
Mass.  226  (1890);  St.  James  Educational  Institute  v.  Salem,  153  Mass.  185 
(1891);  Bates  v.  Sharon,  175  Mass.  293  (1900);  All  Saints  Parish  v.  Brookline. 
178  Mass.  404  (1901);  Lancy  v.  Boston,  186  Mass.  128,  132  (1904);  Sullivan  v. 
Boston,    198   Mass.    119    (1908). 

16  Watson  v.  Princeton,  4  Met.  599  (1842) ;  Bates  v.  Boston,  5  Cush.  93 
(1849);  Lincoln  v.  Worcester,  8  Cush.  55  (1851);  Middlesex  Railroad  v.  Charles- 
town,  18  Allen  330  (1864);  Wellington  v.  Belmont,  164  Mass.  142   (1895). 

17  Hicks  v.  Westport,  130  Mass.  478  (1881);  Norcross  v.  Milford,  150 
Mass.  237   (1889);  Sullivan  v.  Ashfield,  227  Mass.  24   (1917). 


404  Taxation   in   Massachusetts 

[G.  L.  c.  60,  §  98 
personal  property  in  the  city  or  town  that  is  properly  taxable 
there  is  not  barred  by  his  ownership  of  real  estate  in  the  city 
or  town  from  maintaining  an  action  of  contract  to  recover  a 
tax  improperly  assessed  to  him  in  respect  to  personal  prop- 
erty.18 

The  same  principles  apply  to  a  fiduciary  as  to  a  person 
assessed  in  his  individual  capacity.  A  fiduciary  cannot  main- 
tain a  common  law  action  to  recover  a  portion  of  a  tax  assessed 
upon  him,  upon  the  ground  that  the  tax  is  excessive;19  and  this 
rule  applies  when  the  entire  tax  assessed  upon  him  as  a  fiduciary 
is  invalid,  if  he  is  properly  taxable  in  any  amount  however  small 
in  his  individual  capacity;20  but  if  he  is  not  properly  taxable 
in  the  city  or  town  either  as  a  fiduciary  or  in  his  individual  capac- 
ity he  may  recover  in  an  action  at  common  law  a  tax  assessed 
upon  him  as  fiduciary.21  A  tax  on  a  partnership  is  on  the  other 
hand  a  separate  tax,  and  although  if  the  partnership  holds  any 
taxable  property  of  the  class  assessed  its  only  remedy  for  over- 
assessment  is  a  petition  for  abatement,22  it  is  not  barred  from 
recovering  a  tax  that  is  wholly  invalid  by  reason  of  the  owner- 
ship of  taxable  property  by  the  partners  individually.23 

An  omitted  assessment  on  newly  discovered  property  is  part 
of  the  annual  tax  though  assessed  at  a  different  time,  and  a 
person  whose  original  tax  was  valid  cannot  recover  back  such 
an  assessment  in  an  action  of  contract  although  none  of  the 
newly  discovered  property  assessed  was  really  taxable  to  him.24 
With  regard  to  betterment  assessments  that  have  been  paid 
under  protest,  any  ground  of  objection  which  does  not  go  to 
show  the  whole  proceeding  to  be  a  nullity  is  not  a  proper  basis 
for  an  action  of  contract  to  recover  back  the  money  paid;25  but 
when  such  an  assessment  is  void  the  person  assessed  is  not  pre- 
cluded from  recovering  it  back  by  reason  of  his  ownership  of 

18  Preston  v.  Boston,  12  Pick.  7   (1831;. 

19  Sears  v.  Nahant,  221  Mass.  435  (1915). 

20  Bourne  v.  Boston,  2  Gray  494  (1854);  Harrington  v.  Glidden,  179  Mass. 
486  (1901). 

21  Williams  v.  Acton,  219  Mass.  520   (1914). 

22  Oliver  v.  Lynn,  130  Mass.  143   (1881). 

23  Little  v.  Cambridge,  9  Cush.  298  (1852);  Oliver  v.  Lynn,  130  Mass. 
143   (1881);   Spinney  v.  Lynn,  172  Mass.  464   (1899). 

24  Harwood  v.   North  Brookfield,   130   Mass.   561    (1881). 

25  Wright  v.  Boston,  9  Cush.  233  (1852);  Stark  v.  Boston,  180  Mass.  293 
(1902).  For  a  discussion  of  the  irregularities  in  assessing  a  betterment  assess- 
ment that  will  render  it  void  see  infra  page  690. 


Collection  of  Local  Taxes  405 

G.  L.  c.  60,  §  98] 

real  estate  in  the  same  city  or  town  properly  subject  to  general 
taxation.26 

When  there  has  been  an  over-valuation  of  a  parcel  of  land, 
and  the  land  is  sold  after  the  date  as  of  which  the  tax  is  assessed 
but  before  it  is  paid,  the  purchaser  is  without  any  means  to 
secure  a  reduction  of  the  tax,  for  he  cannot  maintain  an  action 
of  contract  to  recover  back  the  portion  of  the  tax  attributable 
to  the  over-valuation  27  since  such  an  action  is  not  the  remedy 
for  over-valuation  and  he  cannot  apply  for  an  abatement,  be- 
cause not  being  the  person  assessed  he  is  not  a  person  aggrieved 
within  the  meaning  of  the  statute.28 

ACTION  AT  COMMON  LAW  IN   CASE   OF  INFORMALITY 

The  action  of  contract  to  recover  back  a  tax  furnishes  a  con- 
venient remedy  when  the  assessment  has  not  been  made  in 
accordance  with  law.  A  taxpayer  is  not  however  necessarily  en- 
titled to  have  a  tax  declared  invalid  and  to  recover  it  back  from 
the  city  or  town  because  every  provision  of  the  statutes  relating 
to  the  assessment  of  taxes  was  not  complied  with.  All  those 
provisions  which  are  intended  for  the  security  of  the  citizen, 
for  securing  an  equality  of  taxation  and  to  enable  everyone  to 
know  with  reasonable  certainty  for  what  polls  and  for  what 
real  and  personal  estate  he  is  taxed,  and  for  what  all  those  who 
are  liable  with  him  are  taxed  are  mandatory.  They  are  conditions 
precedent  to  a  valid  tax  and  if  they  are  not  observed  the  citizen 
is  not  legally  assessed.  But  many  regulations  are  made  by 
statute,  designed  for  the  information  of  the  assessors  and  other 
officers  and  intended  to  promote  method,  system  and  uni- 
formity in  the  modes  of  procedure,  the  compliance  or  non- 
compliance with  which  in  no  respect  affects  the  rights  of 
taxpaying  citizens.  These  may  be  considered  merely  direc- 
tory, and  the  non-compliance  with  them  does  not  make 
the  tax  invalid.29  If  the  illegality  affects  only  part  of 
the  assessment,   as   when   the   tax  is  levied   in   part   to  raise 

26  Dexter  v.  Boston,  176  Mass.  247  (1900) ;  Smith  v.  Boston,  194  Mass. 
31    (1907). 

27  Sullivan  v.  Boston,  198  Mass.   119   (1908). 
2«  Dunham  v.  Lowell.  200  Mass.  468   (1909). 

29  Torrey  v.  Millbury,  21  Pick.  64  (1838).  See  also,  Sprague  v.  Bailey, 
19  Pick.  436  (1837);  Tobey  v.  Wareham,  2  Allen  594  (1861);  Westhawipton 
v.  Searle,  127  Mass.  502  (1879);  Noyes  v.  Hale,  137  Mass.  266  (1884);  Bemis 
v.  Caldwell,  143  Mass.  299   (1887). 


406  Taxation    in   Massachusetts 

[G.  L.  c.  60,  §  98 

money  for  unauthorized  purposes,  the  taxpayer  can  recover 
only  the  illegal  excess.30  When  however  there  is  no  lien  on 
a  piece  of  real  property  or  the  lien  has  expired  and  the  collector 
by  mistake  in  his  rights  threatens  to  enforce  the  payment  of 
a  tax  assessed  upon  a  former  owner  of  the  property  by  a  sale 
of  the  property,  one  who  has  purchased  it  since  the  assessment 
may  instead  of  resisting  the  collector  or  resorting  to  other  rem- 
edies pay  the  tax  under  written  protest  and  bring  suit  to  recover 
the  amount  paid.31  This  result  has  been  reached  as  an  inference 
from  the  statute  relating  to  payment  under  protest  and  it  seems 
a  just  conclusion;  for  a  person  so  threatened  is  not  permitted 
to  apply  for  an  abatement  of  a  tax  which  was  not  assessed  upon 
him  and  unless  he  may  protect  himself  in  this  way  he  must  run 
the  risk  of  letting  the  estate  be  sold  and  having  the  sale  subse- 
quently declared  invalid;  but  when  a  person  who  has  been 
legally  assessed  is  compelled  to  pay  the  tax  by  unlawful  methods 
employed  by  the  collector  he  cannot  recover  the  tax  in  an  action 
of  contract  against  the  city  or  town. 


32 


PAYMENT   UNDER   DURESS    OR    PROTEST 

Upon  general  principles  of  common  law  it  was  early  held 
that  a  person  who  voluntarily  paid  an  illegal  tax  could  not 
maintain  an  action  to  recover  it  back,  even  though  he  paid  it 
under  protest;33  but  that  a  person  who  had  paid  a  tax  to  a 
collector  upon  demand  when  the  collector  held  a  warrant  au- 
thorizing him  to  seize  the  goods  or  arrest  the  body  of  the  person 
on  whom  the  demand  was  made  and  such  person  had  no  oppor- 
tunity to  contest  the  validity  of  the  warrant  in  court  before  it 
was  executed,  could  not  be  said  to  pay  voluntarily,  and,  if  the 
tax  was  invalid,  might  maintain  an  action  to  recover  it  back, 
whether  it  was  paid  under  protest  or  not.34 

In  IS  59  the  statute  was  enacted  which  in  substance  now 
stands  as  the  first  sentence  of  section  ninety-eight.35    The  effect 

30  G.  L.  c.  59,  §  82,  supra  page  311. 

«  McGee  v.  Salem,   149   Mass.  268   (1889). 

32  Dunbar  v.  Boston,  112  Mass.  75   (1873). 

33  Benson  v.  Monroe,  7  Cush.  125  (1851) ;  Lee  v.  Templeton,  13  Gray  476 
(1859) ;  Cunningham  v.  Boston,  15  Gray  468  (1860) ;  Cook  v.  Boston,  9  Allen 
393    (1864). 

34  Preston  v.  Boston,  12  Pick.  7  (1831) ;  Boston  &  Sandwich  Glass  Co.  v. 
Boston,  4  Met.  181  (1842);  George  v.  School  District  in  Mendon,  6  Met.  497, 
506  (1843);  Joyner  v.  School  District  in  Egremont,  3  Cush.  567,  572  (1849). 

35  St.  1859,  c.  118. 


Collection  of  Local  Taxes  407 

G.  L.  c.  60,  §  98] 

of  this  statute  was  to  limit  the  effect  of  payment  on  the  demand 
of  a  collector  who  held  a  warrant  so  that  the  payment  would  be 
thereafter  deemed  voluntary  unless  the  proceedings  to  enforce 
payment  had  actually  begun;  but  to  make  a  protest  in  writing 
equivalent  to  actual  duress  and  in  all  cases  sufficient  basis  for 
action.  After  the  passage  of  the  statute  a  person  who  paid  with- 
out protest  and  before  steps  had  been  taken  by  the  collector 
to  enforce  payment  had  no  standing  in  court;36  but  a  person 
who  paid  under  protest  on  the  collector's  demand  might  recover 
back  the  tax  although  he  was  not  included  in  the  collector's 
warrant,  and  apart  from  the  statute  could  not  maintain  the 
action  on  account  of  the  absence  of  duress.37 

The  protest  must  be  made  in  writing  by  the  person  paying 
the  tax,  and  an  oral  protest  is  not  validated  by  the  action  of  the 
collector  in  inscribing  it  upon  his  records.38  Payment  "  after 
protest "  is  accomplished  by  handing  the  collector  the  amount 
of  a  tax  and  a  written  protest  simultaneously 39  or  by  writing 
the  protest  across  the  face  of  the  tax-bill  and  handing  it  to  the 
collector.40 

The  provision  in  regard  to  protest  and  the  requirement 
that  action  be  brought  within  three  months  of  payment  protects 
a  city  or  town  from  sudden  and  unexpected  assaults  upon  its 
financial  structure,  by  rendering  it  certain  that  money  paid 
without  protest  and  allowed  to  remain  in  the  treasury  without 
objection  for  a  definite  period  cannot  be  recalled.  The  statute 
is  a  beneficial  one  and  has  been  liberally  construed.  Compliance 
with  its  requirements  is  a  condition  precedent,  to  a  right  of 
action;41  its  provisions  extend  to  special  assessments  as  well 
as  to  general  taxation,42  and  apply  to  a  tax  levied  under  an  un- 

36  Barrett  v.  Cambridge,  10  Allen  48  (1865);  Knowles  v.  Boston,  129 
Mass.  551    (1880). 

37  McGee  v.  Salem,  149  Mass.  238   (1889). 

38  Knowles  v.  Boston,  129  Mass.  551   (1880). 

™  Carleton   v.   Ashburnham,    102    Mass.   348    (1869). 

*o  Borland  v.  Boston,  132  Mass.  89  (1882) ;  Thayer  Academy  v.  Braintree, 
232  Mass.  402   (1919). 

41  Wheatland  v.  Boston,  202  Mass.  258  (1909).  The  requirement  of  pro- 
test does  not  apply  however  when  the  tax  is  paid  by  one  having  an  interest 
in  the  property  to  protect  his  interest,  and  the  owner  of  the  fee  repays  him. 
In  such  case  if  the  tax  is  illegal  the  owner  of  the  fee  may  sue  to  recover  it  back, 
although  the  original  payment  was  not  under  protest.  G.  L.  c.  60,  §  §  60,  85,  supra, 
pages  370,  391. 

42  Barrett  v.  Cambridge,  10  Allen  48  (1865);  Knowles  v.  Boston,  129  Mass. 
551  (1880);  Wheatland  v.  Boston,  202  Mass.  258  (1909). 


408  Taxation   in   Massachusetts 

[G.L.  c.  60,  §98 

constitutional  statute  as  well  as  to  one  that  is  invalid  on  other 
grounds.43  The  statute  has  however  no  application  to  the  stat- 
utory proceeding  in  the  superior  court  in  the  nature  of  an  appeal 
from  the  refusal  of  the  assessors  to  abate  a  tax,  and  a  tax  may 
be  recovered  under  such  proceedings  although  not  paid  under 
protest  and  although  the  proceedings  were  not  instituted  until 
more  than  three  months  after  payment  of  the  tax. 


44 


ACTION   OF   TORT   AGAINST   THE    CITY    OR   TOWN 

This  subject  is  easily  disposed  of.  A  city  or  town  is  not 
liable  in  an  action  of  tort  for  the  conduct  of  its  assessors  in 
wrongfully  assessing  a  tax  upon  an  individual  not  subject  to 
taxation  by  them,  and  of  its  collector  for  arresting  the  person 
so  taxed  or  seizing  and  selling  his  property  to  enforce  payment 
of  the  tax.45  The  assessors  and  collector  though  elected  by  the 
inhabitants  of  the  town  are  not  the  agents  of  the  town  for 
whose  actions  it  is  responsible,  but  public  officers  whose  duties 
are  prescribed  by  law.46  The  remedy  of  recovering  back  the 
amount  of  the  tax  by  action  of  contract  is  considered  sufficient; 
and  if  a  person  wrongly  assessed  is  put  to  inconvenience  and 
additional  expense  by  the  action  of  the  collector  in  enforcing  the 
tax,  it  is  a  consequence  that  he  might  have  avoided  by  paying 
the  tax  under  protest  and  suing  to  recover  it  back.47 

BILL   IN   EQUITY 

In  many  jurisdictions  a  recognized  method  of  contesting  the 
validity  of  a  tax'is  to  bring  a  bill  in  equity  to  enjoin  its  collection, 
and  if  any  recognized  ground  of  equitable  jurisdiction  can  be 
shown  the  court  will  entertain  the  proceeding.  In  some  juris- 
dictions the  inequality  in  the  relative  positions  of  the  taxpayer 
and  the  collector  is  deemed  in  itself  ground  for  equitable  inter- 
ference. In  this  commonwealth  however  the  remedies  at  law 
by  petition  for  abatement  and  action  of  contract  are  considered 

43  Barrett  v.  Cambridge,  10  Allen.  48  (1865);  Knowles  v.  Boston,  129 
Mass.  551    (1880);  Wheatland  v.  Boston,  202  Mass.  258   (1909). 

44  Thayer  Academy   v.  Braintree,   232   Mass.  402    (1919). 

45  Shaw  v.  Becket,  7  Cush.  442  (1851);  Alger  v.  Easton,  119  Mass.  77 
(1875);  Hathaway  v.  Everett,  205  Mass.  246  (1910). 

46  Rossire  v.  Boston,  4  Allen  57  (1862) ;  Dunbar  v.  Boston,  112  Mass.  75 
(1873);  Alger  v.  Easton,  119  Mass.  77  (1875);  Hathaway  v.  Everett,  205  Mass. 
246   (1910). 

47  Shaw  v.  Becket,  7  Cush.  442  (1851). 


Collection  of  Local  Taxes  409 

G.  L.  c.  60,  §  98] 

plain  and  adequate,  and  it  is  well  settled  that  a  bill  in  equity 
will  not  lie  to  enjoin  the  collection  of  a  tax  on  the  ground  that 
it  has  been  illegally  assessed,  whether  brought  against  the  city 
or  town,48  or  the  collector.49  The  prompt  and  unembarrassed 
collection  of  taxes  is  considered  of  more  importance  than  a 
possible  inconvenience  to  one  or  more  citizens.  The  possibility 
of  a  multiplicity  of  suits  is  no  ground  for  modifying  this  well 
established  rule.50  The  court  will  not  inquire  into  the  validity 
of  a  tax  in  a  proceeding  in  equity. 

Even  when  two  towns  have  assessed  the  same  person  for 
the  same  property  he  is  left  to  his  remedies  at  law,  and  the  court 
will  not  entertain  a  bill  in  equity  in  the  nature  of  a  bill  of  inter- 
pleader to  determine  in  which  town  the  tax  should  properly 
have  been  assessed,  even  with  the  consent  of  the  towns  inter- 
ested.51 

When  however  a  tax  collector  in  enforcing  payment  of  a 
tax  attempts  to  go  wholly  beyond  the  limits  of  his  jurisdiction 
and  to  interfere  with  the  person  or  property  of  the  person  assessed 
in  a  manner  not  warranted  by  the  statutes,  if  there  is  no  ade- 
quate remedy  at  law  and  grounds  for  the  interposition  of  equi- 
table relief  appear,  it  is  possible  that  the  court  might  grant 
injunctive  relief. 


52 


PETITION  FOR  WRIT  OF  MANDAMUS 

There  is  little  occasion  in  this  commonwealth  to  employ  the 
writ  of  mandamus  to  enforce  the  performance  of  duties  arising 
under  the  laws  relating  to  the  assessment  and  collection  of 
taxes.     The  writ  is  issued  to  compel  the  performance  of  an 

*s  Brewer  v.  Springfield,  97  Mass.  152  (1867);  Loud  v.  Charlestown.  99 
Mass.  208  (1868);  Whiting  v.  Boston,  106  Mass.  89  (1870);  Hunnewell  v. 
Charlestown,  106  Mass.  350  (1871);  Norton  v.  Boston,  119  Mass.  194  (1875); 
Clark  v.  Worcester,  167  Mass.  81   (1896). 

*o  Kelly  v.  Barton,  174  Mass.  396  (1899);  Greenhood  v.  MacDonald,  183 
Mass.  342  (1903);  Webber  Lumber  Co.  v.  Shaw,  189  Mass.  366  (1905);  Warr 
v.  Collector  of  Taunton,  234  Mass.  279   (1920). 

so  Greenhood  v.   MacDonald,   183   Mass.  342    (1903). 

51  Macy  v.  Nantucket,  121  Mass.  351  (1876);  Welch  v.  Boston,  208  Mass. 
326  (1911).  See,  however.  Hardy  v.  Yarmouth,  6  Allen  277  (1863),  and  Forest 
River  Lead  Co.  v.  Salem,  165  Mass.  193  (1896),  in  which  such  bills  were  allowed 
when  no  objection  was  taken. 

52  Warr  v.  Collector  of  Taunton,  234  Mass.  279  (1920).  A  bill  in  equity 
will  not  lie  against  a  city  or  town  to  recover  a  sum  of  money  paid  as  a  nec- 
essary consequence  of  an  illegal  tax  sale.  Clark  v.  Worcester,  167  Mass.  81 
(1896). 


410  Taxation    in    Massachusetts 

[G.  L.  c.  60,  §  98 

act  nc4  involving  the  exercise  of  discretion,  at  the  instance  of  a 
person  having  no  other  available  remedy.  Consequently  man- 
damus is  not  the  proper  means  to  compel  either  the  assessors 53 
or  the  county  commissioners  to  abate  a  tax,54  for  abatement  is 
a  judicial  act.  A  person  aggrieved  by  the  decision  of  the  assess- 
ors has  his  statutory  right  of  appeal,  and  if  the  county  com- 
missioners commit  an  error  of  law  a  person  aggrieved  may  have 
their  proceedings  reviewed  on  writ  of  certiorari.  Mandamus 
will  however  lie  to  compel  a  board  of  assessors  or  county  com- 
missioners to  render  a  decision  within  a  reasonable  time  upon 
a  petition  for  abatement  which  has  been  heard  by  them.  Man- 
damus will  not  lie  to  compel  a  collector  to  receive  a  tax  which 
the  assessors  have  abated;55  for  if  the  assessors  act  within  their 
jurisdiction  the  collector  has  no  power  to  disregard  their  actions. 
Mandamus  will  not  be  issued  at  the  instance  of  a  taxpayer  to 
prevent  the  illegal  expenditure  of  public  money,50  for  the  proper 
remedy  is  the  petition  of  ten  taxpayers  provided  by  statute. 

In  certain  parts  of  the  United  States,  occasions  have  arisen 
for  the  issuance  of  a  writ  of  mandamus  to  compel  the  assessment 
of  a  tax.  A  city  or  town  has  sometimes  refused  to  pay  its  debts 
and  judgment  creditors  have  been  unable  to  satisfy  their  exe- 
cutions. The  proper  officers  of  the  city  or  town  with  full  power 
to  levy  and  collect  taxes  have  refused  to  raise  money  for  the 
benefit  of  the  creditors  of  the  municipality,  and  in  such  cases 
a  writ  of  mandamus  has  issued,  generally  from  a  federal  court, 
to  compel  the  officers  to  perform  their  duty.57  Even  then  how- 
ever if  the  officer  resigns  his  office  before  he  can  be  served  with 
the  writ  and  no  successor  is  appointed  the  effort  fails,  and  the 
creditors  are  obliged  to  resort  to  a  court  of  equity,  which  will 
proceed  to  collect  the  tax  through  its  own  officials.58 

In  this  commonwealth  an  execution  against  a  city  or  town 
can  be  satisfied  out  of  the  property  of  any  of  the  inhabitants,59 

53  Sears  v.  Assessors  of  Nahant,  208  Mass.  208  (1911). 

54  Gibbs  v.  Hampden  County  Commissioners,  19  Pick.  298   (1837) 

55  Gordon  v.  Sanderson,  165  Mass.  375   (1896). 
se  Finlay  v.  Boston,  196  Mass.  267   (1907). 

57  Thompson  v.  Allen  County,  115  U.  S.  550  (1885) ;  Hubert  v.  New  Orleans, 
215  U.  S.  170   (1909). 

ss  Welch  v.  St.  Genevieve,  1  Dill.   (U.  S.)    130   (1871). 

59  3  Dane  Ab.  158;  Hawkes  v.  Kennebeck,  7  Mass.  461,  463  (1811);  Brewer 
v.  New  Gloucester,  14  Mass.  216  (1817);  Merchants  Bank  v.  Cook,  4  Pick. 
405,  414  (1826);  Chase  v.  Merrimack  Bank,  19  Pick.  564,  569  (1837);  Gaskill 
v.  Dudley,  6  Met.  546  (1843);  Hill  v.  Boston,  122  Mass.  344,  350   (1877). 


Collection  of  Local  Taxes  411 

G.L.c.  60,  §98] 

and  there  is  no  occasion  for  a  judgment  creditor  to  seek  to 
compel  the  assessors  to  levy  a  tax  to  meet  his  claim.  Moreover, 
there  is  ample  provision  for  the  assessment  of  local  taxes  by 
the  county  authorities  if  a  town  refuses  to  elect  assessors  or  the 
assessors  elected  refuse  to  assess  a  tax. 

When  a  taxpayer  seeks  to  contest  the  constitutionality  of 
a  method  of  distributing  among  the  cities  and  towns  of  a  state 
the  proceeds  of  a  tax  collected  by  the  state  authorities,  or  to 
question  whether  the  distribution  is  being  conducted  in  accord- 
ance with  the  provisions  of  statute,  none  of  the  ordinary  meth- 
ods are  available,  since  in  such  case  the  taxpayer  is  not  attempt- 
ing to  have  his  tax  abated,  or  any  part  of  it  returned  to  him, 
and  in  such  case  it  would  seem  that  mandamus  is  the  appro- 
priate remedy,  in  order  to  prevent  a  failure  of  justice.  Cases 
have  been  decided  in  which  such  questions  were  raised  by  peti- 
tion for  writ  of  mandamus,  but  the  court  has  never  directly 
determined  whether  the  procedure  was  appropriate.60 

Other  remedies  for  excessive  or  illegal  taxes  are  discussed 
elsewhere  in  this  work.81 

60  Duffy  v.  Treasurer  &  Receiver  General,  234  Mass.  42  (1919) ;  Dane  v. 
Treasurer  &  Receiver  General,  236  Mass.  280  (1920);  Dane  v.  Treasurer  & 
Receiver  General,  237  Mass.  50  (1921);  Knights  v.  Treasurer  &  Receiver 
General,  237  Mass.  493  (1921). 

01  Ten  taxpayers'  petition  to  restrain  taxation  for  an  illegal  purpose,  G. 
L.  c.  40,  §  53,  supra  page  147.  Taxpayer's  petition  to  enforce  tax  limit,  G. 
L.  c.  44,  §  59.  Repayment  of  illegal  corporation  or  inheritance  taxes,  G.  L. 
c.  58,  §  27,  supra  page  181.  Abatement  of  excessive  taxes  and  appeals  to  county 
commissioners  or  superior  court,  G.  L.  c.  59,  §  §  59  to  74  inc.,  supra  page  285. 
Appeal  from  apportionment  of  tax  on  real  estate  subsequently  divided,  G.  L. 
c.  59,  §  81,  supra  page  309.  Action  to  recover  tax  illegal  in  part,  G.  L.  c.  59. 
§  82,  supra  page  311.  Action  against  assessors  for  illegal  assessment,  G.  L. 
c.  59,  §  87,  supra  page  313.  Action  against  collector  for  unlawful  arrest, 
G.  L.  c.  60,  §  29,  supra  page  338.  Action  to  recover  amount  paid  if  tax  title 
is  defective,  G.  L.  c.  60,  §  46,  supra  page  360.  Writ  of  entry  to  recover 
land  illegally  held  under  tax  title,  G.  L.  c.  60,  §  62,  supra  page  374.  Answer 
in  proceedings  to  foreclose  tax  title,  G.  L.  c.  60,  §  70,  supra  page  381.  Bill 
in  equity  to  redeem  from  tax  sale,  or  to  remove  cloud  from  title  G.  L. 
c.  60,  §  76,  supra  page  383.  Action  against  collector  for  unlawful  acts,  G.  L. 
c.  60,  §  95,  supra  page  396.  Abatement  of  excessive  income  tax,  G.  L.  c.  62, 
§  §  43  to  48  inc.,  infra  page  494.  Abatement  of  excessive  corporation  tax, 
and  appeal,  G.  L.  c.  63,  §  §  51,  71,  infra  pages  573,  593.  Relief  from  unlawful 
corporation  tax.  G.  L.  c.  63,  §  §  77,  78,  infra  page  596.  Refunding  of  loss  by 
stamps  on  stock  transfers  erroneously  affixed,  G.  L.  c.  64,  §  6,  infra  page 
604.  Application  for  appraisal  of  property  for  purposes  of  inheritance  tax, 
G.  L.  c.  65,  §  §  25,  26,  infra  page  649.  Petition  to  probate  court  to  deter- 
mine amount  of  inheritance  tax,  G.  L.  c.  65,  §  30,  infra  page  654.  Petition- 
for  abatement  of  excessive  betterment  assessment,  G.  L.  c.  80,  §  §  5  to  10 
inc.,  infra  pages  692  to  697  inc. 


412  Taxation   in    Massachusetts 

[G.  L.  c.  60,  §  99-105  inc. 

Penalties 

Section  99.  A  collector  who  neglects  or  refuses  to  exhibit  ac- 
counts or  to  produce  receipts,  as  required  under  section  ninety-four, 
shall  forfeit  to  the  town  two  and  one  half  per  cent  of  the  sums  com- 
mitted to  him  for  collection. 

*  Section  100.  Violation  by  a  collector,  former  collector,  or  an 
executor  or  administrator  of  a  collector  or  former  collector,  of  any 
provision  of  sections  nine  to  twelve,  inclusive,  shall  be  punished  by 
a  fine  of  not  more  than  five  hundred  dollars. 

Section  101.  Violation  of  section  twelve  by  a  person  of  whom 
demand  is  made  thereunder  shall  be  punished  by  a  fine  of  not  more 
than  five  hundred  dollars. 

Section  102.  Violation  by  a  collector  of  section  two  or  section 
eight  shall  be  punished  by  a  fine  of  not  less  than  three  hundred  dol- 
lars. 

Section  103.      Whoever  refuses  or  neglects  to  aid  a  collector  when 

0 

required  under  section  thirty-three  shall  forfeit  not  more  than  ten 
dollars. 

Section  104.  Violation  by  a  collector,  or  by  a  holder  of  a  tax 
title,  of  the  last  paragraph  of  section  sixty -two,  shall  be  punished  by 
a  fine  of  not  more  than  one  hundred  dollars. 

A  holder  of  a  tax  title  who  knowingly  collects  or  attempts 
to  collect  for  the  redemption  of  the  land  a  larger  amount  than 
is  authorized  by  law  is  not  only  subjected  to  a  penalty  by 
section  one  hundred  and  four,  but  his  violation  of  the  law  may 
operate  to  extend  the  time  allowed  for  redemption.1 

Forms  in  Proceedings  for  Collection  of  Taxes 

Section  105.  The  following  forms  may  be  used  in  proceedings 
for  the  collection  of  taxes  under  this  chapter,  and,  if  substantially 
followed,  they  shall  be  deemed  sufficient  for  the  proceedings  to  which 
they  respectively  relate;  but  other  suitable  forms  may  also  be  used. 
These  forms  may  also  be  used,  so  far  as  applicable,  in  the  collection 
of  betterments  and  other  assessments  of  like  character. 

SCHEDULE    OF   FORMS. 

No.  1.  Foem  of  Demand  under  Section   16. 

B,  ,  19    . 

To 

Herewith  find  your  tax  bill  due  ,  19     ,  amounting  to  $ 

Payment  -.f  the  same  is  hereby  demanded.     Interest  at  the  rate  of  per 

1  Davidson  v.   Stafford,  210   Mass.   145    (1911). 


Collection  of  Local  Taxes  413 

G.L.c.  60,  §105] 

cent   per   annum   will   be    charged   from  ,  19    .    You    are   hereby 

notified  that  unless  your  tax  is  paid  in  fourteen  days  from  this  date,  with 
legal  interest  and  charges,  and  twenty-five  cents  for  this  demand,  the  collector 
will  then  proceed  to  collect  the  same  according  to  law. 


Collector  of  Taxes  Jor  the  oj 

No.  2.  Form  of  Summons  under  Section  18. 

B,  ,  19    . 

To 

Your  tax  for  the  year  19    ,  amounting  to  $  and  interest  thereon, 

is  now  due.  You  are  required  to  pay  the  same  within  ten  days  from  this 
date  with  twenty  cents  for  this  summons.  At  the  expiration  of  that  time,  if  the 
tax  is  not  paid,  the  collector  will  proceed  to  collect  the  same  according  to  law. 


Collector  oj  Taxes  jor  the  oj 

No.  3.    Form  of  Notice  of  Sale  of  Distrained  Property  under  Section  25. 

collector's  sale. 

Distrained  upon  a  warrant  of  distress  for  non-payment  of  taxes,  and  will  be 
sold  by  public  auction  on  ,  the  day  of  , 

19      ,  at  o'clock  Mv  at  ,  unless  said  taxes, 

interest  and  charges  shall  be  paid  before  the  sale,  the  following  described  prop- 
erty, to  wit:     [Here  describe  the  property.] 

B,  ,  19    . 


Collector  oj  Taxes  jor  the  oj 

(Or  other  authorized  officer,  as  the  case  may  be) 

No.  4.    Form  of  Notice  of  Adjournment  of  Sale  under  Section  26. 

[To  the  original  notice  of  sale,  or  a  copy  thereof,  add  the  following,  and  post 
at  the  place  of  sale:] 

The  collector  hereby  gives  notice  that  the  above  sale  stands  adjourned  to 
,  the  day  of  ,  19    ,  at  the  same  hour  and 

place. 

B,  ,  19    . 


Collector  oj  Taxes  jor  the  oj 

(Or  other  authorized  officer,  as  the  case  may  be) 

No.  5.    Form  of  Certificate  required  by  Section  30  to  be  given  when  a  Com- 
mitment  is    MADE. 

B,  ,  19    . 

I  hereby  certify  that  the  tax  assessed  in  the  of 

as  of  the  first  day  of  April  in  the  year  19      upon 
remains  unpaid  for  fourteen  days  after  demand  therefor  made  by  me  (or  the 
collector  of  taxes  of  the  town  of  B)  and  still  remains  unpaid;  and  that  for  want 
of  goods  and  chattels  whereof  to  make  distress  I  commit  the  said  person  tc 
jail. 

I  also  certify  that  the  amount  the  said  person  is  to  pay  for  said  tax,  interest, 
charges,  fees,  and  traveling  expenses  as  provided  by  statute,  is 

dollars.  

Collector  oj  Taxes  jor  the  of 

(Or  other  authorized  officer,  as  the  case  may  be.) 


414  Taxation    in    Massachusetts 

[G.L.  c.  60,  §105 
No,  6.    Form  of  Collector's  Warrant  to  distrain  or  commit  under  Section  34. 

Commonwealth    of    Massachusetts. 
To  the  Sheriffs  of  our  several  Counties,  or  their  Deputies,  or  to  any  Constable  of 

or  Deputy  Collector  of  Taxes  for  the  of  in  the 

County  of 

Greeting  : 

Whereas,  a  resident  of  in  the  County  of 

was  duly  assessed  as  of  the  first  day  of  April  in  the  year  nineteen  hundred  and 
,  by  the  Assessors  of  the  of  ,  a  tax  in 

the  sum  of  dollars;  and  the  same  now,  after  the  expiration  of  four- 

teen days  from  the  date  of  a  demand  made  upon  him  by  me  in  accordance  with 
law  for  the  payment  of  the  same,  remains  unpaid;   Therefore, 

In  the  name  of  the  Commonwealth  of  Massachusetts,  you  and  each  of  you 
are  required  and  directed  to  distrain  the  goods  or  chattels  of  the  said  person  so 
assessed  sufficient  to  satisfy  and  pay  the  amount  due  for  such  tax  and  interest, 
and  all  fees  and  charges  of  keeping  and  selling  the  same,  saving  and  excepting 
the  tools  or  implements  necesssary  for  the  trade  or  occupation  of  the  said  person 
so  assessed;  beasts  of  the  plough  necessary  for  the  cultivation  of  his  improved 
land;  military  arms,  uniforms  and  equipment;  utensils  for  housekeeping  neces- 
sary for  upholding  life;  and  bedding  and  apparel  necessary  for  the  said  person 
so  assessed  and  his  family.  And  the  goods  and  chattels  so  distrained  by  you, 
you  are  required  to  keep  at  the  cost  and  charge  of  the  owner  for  four  days  at 
least  and  within  seven  days  after  the  seizure  to  sell  the  same  at  public  auction, 
for  the  payment  of  the  said  amount  due,  having  first  posted  up  a  notice  of  the 
sale  in  some  public  place  in  the  city  or  town  where  found,  forty-eight  hours  at 
least  before  the  sale:  provided,  however,  that  you  may,  if  you  shall  see  fit,  once 
adjourn  said  sale  for  a  time  not  exceeding  three  days,  in  which  case  you  shall 
forthwith  post  up  a  notice  of  such  adjournment  and  of  the  time  and  place  of 
sale.  And  if  said  distress  shall  be  sold  for  more  than  the  said  amount  due  you 
shall  return  the  surplus  to  the  owner  of  such  goods  or  chattels  upon  demand, 
with  an  account  in  writing  of  the  sale  and  charges.  And  if  you  cannot  find  suffi- 
cient goods  and  chattels  belonging  to  the  person  assessed,  whereon  to  make  dis- 
tress, you  shall  take  the  body  of  the  said  person  and  him  commit  to  one  of  the 
common  jails  in  the  county  in  which  you  shall  arrest  him,  there  to  remain  until 
he  shall  pay  said  tax,  interest,  charges,  and  fees,  and  for  an  arrest,  one  dollar  and 
actual  traveling  expenses  incurred  in  making  such  arrest;  or  until  he  shall  be  dis- 
charged therefrom  by  due  course  of  law:  provided,  however,  that  you  may  at 
your  discretion,  after  the  service  of  this  Warrant,  allow  such  person  to  go  free 
for  a  period  not  exceeding  fourteen  days  after  said  service,  at  which  time  if  said 
person  does  not  pay  his  tax  with  all  fees  and  charges  due  thereon  including  one 
dollar  for  service  of  this  Warrant  and  five  cents  for  each  mile  traveled  by  you  in 
the  performance  of  this  collection  you  shall  then  arrest  said  person  on  this  War- 
rant and  commit  him  to  jail  as  aforesaid.  But  if  you  shall  commit  such  person 
for  the  non-payment  of  a  poll  tax  only  he  shall  not  be  detained  in  jail  more 
than  seven  days.. 

And  in  case  you  shall  commit  said  person  so  assessed  to  jail  by  virtue  of 
this  Warrant,  you  are  required  to  give  the  keeper  of  the  jail  wherein  he  may  be 
committed  an  attested  copy  of  this  Warrant,  with  a  certificate  thereon  under 
your  hand,  setting  forth  that  for  want  of  goods  and  chattels  of  the  said  person 
whereof  to  make  distress,  you  have  taken  his  body  and  committed  him  to  jail 
as  aforesaid;  and  also  setting  forth  the  amount  said  person  is  to  pay  as  his  tax, 
interest,  charges,  fees  and  traveling  expenses  as  provided  by  statute. 

Hereof  fail  not,  and  make  return  of  this  Warrant,  with  your  doings  thereon, 
within  sixty  days  from  the  date  hereof. 

Given  under  my  hand  and  seal  this  day  of  19 

[seal.] 

Collector  of  Taxes  for  the  of 


Collection  of  Local  Taxes  415 

G.  L.  c.  60,  §  105] 

No.  7.  Form  of  Certificate  to  be  endorsed  on  Copy  of  Warrant  in  Case  op 

Commitment. 

B  ,  ,  19    . 

I  hereby  certify  that,  by  virtue  of  the  warrant,  of  which  the  within  is  a  true 
copy,  for  want  of  goods  and  chattels  whereof  to  make  distress,  I  have  taken 
the  body  of  the  within  named  and  committed  him  to 

jail,  and  that  the  amount  which  he  is  to  pay  as  his  tax,  interest,  charges,  fees, 
and  traveling  expenses  as  provided  by  statute,  is  dollars. 


Deputy  Collector  of  Taxes  for  the  oj 

(Or  other  authorized  officer,  as  the  case  may  be) 

No.  8.  Form  of  Demand  of  Tax  on  Real  Estate  under  Section  37. 

C,  ,  19    . 


To 


In  compliance  with  the  statute  I  hereby  demand  of  you  payment  of 
dollars,  that  being  the  amount  of  tax  assessed  for  the  year  19  on  the  estate  in 
this  [City  or  Town]  [here  give  a  brief  statement  of  the  estate]  and  owned  or  oc- 
cupied by  you  at  the  date  of  assessment.  You  are  hereby  notified  that  if  said 
amount,  together  with  the  interest,  legal  costs  and  charges  thereon,  is  not  paid 
within  fourteen  days  from  this  date,  with  twenty-five  cents  for  this  demand, 
the  said  estate  will  be  sold  by  public  auction,  pursuant  to  law. 


Collector  of  Taxes  for  the  of 

No.  9.  Form  of  Collector's  Notice  of  Sale  of  Real  Estate  to  be  published  in 

a  Newspaper  under  Section  40. 

B,  ,  19    . 

The  owners  and  occupants  of  the  following  described  parcels  of  real  estate 
situated  in  the  [City  or  Town]  of  ,  in  the  County  of  and 

Commonwealth  of  Massachusetts,  and  the  public  are  hereby  notified  that  the 
taxes  thereon  severally  assessed  for  the  years  hereinafter  specified,  according  to 
the  list  committed  to  me  as  collector  of  taxes  for  said  by  the 

assessors  of  taxes,  remain  unpaid,  and  that  the  smallest  undivided  part  of  said 
land  sufficient  to  satisfy  said  taxes,  with  interest  and  all  legal  costs  and  charges, 
or  the  whole  of  said  land  if  no  person  offers  to  take  an  undivided  part  thereof, 
will  be  offered  for  sale  by  public  auction  at  the  in  said 

on  ,  19    ,  at  o'clock    m.,  for  the  payment  of 

said  taxes  with  interest,  costs  and  charges  thereon,  unless  the  same  shall  be 
previously  discharged.  [Here  state  the  name  of  the  party  taxed,  if  known;  a 
substantially  accurate  description  of  the  estate;  the  year  in  which  the  tax  is 
assessed;  and  the  amount  of  the  tax  on  each  parcel  of  real  estate.] 


Collector  of  Taxes  for  the  of 

No.  10.    Form  of  Deed  under  Sections  43  and  45. 
Commonwealth    of    Massachusetts. 

To  all  Persons  to  whom  these  Presents  may  come, 

I,  ,  Collector  of  Taxes  for  the  of  , 

in  the  County  of  and  Commonwealth  of  Massachusetts, 

Send  Greeting: 

Whereas,  the  Assessor  of  Taxes  of  said  of  ,  in  the 

lists  of  assessments  for  taxes,  which  they  committed  to  me  to  collect  for  the 


416  Taxation   in   Massachusetts 

[G.  L.  c.  60,  §  105 
year  one  thousand  nine  hundred  and  ,  duly  assessed 

as   owner   or   occupant   of   the   land   in   said  ,   which   is   hereinafter 

described,  the  sum  of  dollars  and  cents,  for  State, 

County  and  [City  or  Town]  Taxes  thereon;  and  whereas,  on  the 
day  of  ,  A.D.  19  ,  I  duly  demanded  of  said  [if  the  demand  was 

made  on  a  mortgagee  or  an  attorney  of  a  non-resident  owner,  here  insert  the, 
fact]  the  payment  of  said  taxes,  so  as  aforesaid  assessed  on  said 

land,  and  the  same  were  not  paid;  and  whereas,  after  the  expiration  of  four- 
teen days  from  the  time  of  demanding  payment  of  said  taxes  as  aforesaid,  the 
same  still  remaining  unpaid,  I  duly  advertised  that  the  smallest  undivided 
part  of  said  land  sufficient  to  satisfy  said  taxes  with  interest  and  all  legal  costs 
and  charges,  or  the  whole  of  said  land  if  no  person  offers  to  take  an  undivided 
part  thereof,  would  be  sold  by  public  auction  for  the  payment  of  said  taxes 
with  interest,  and  all  legal  costs  and  charges,  on  the  day  of 

,  A.D.  19    ,  at  o'clock  in  the  noon,  at  the 

in  said  ,  by  publishing  an  advertisement  thereof,  contain- 

ing also  a  substantially  accurate  description,  and  the  names  of  all  owners  of  said 
land  known  to  me,  and  the  amount  of  the  taxes  so  as  aforesaid  assessed  thereon,  in 
the  ,  a  newspaper  published  in  ,  in  the  County  where  said  land 

lies,  three  weeks  successively,  the  last  publication  whereof  was  at  least  one 
week  before  the  time  appointed  for  the  sale,  and  by  posting  the  said  adver- 
tisement in  public  and  convenient  places  in  said  , 
to  wit:  the  ,  three  weeks  before  the  time  appointed  for  said  sale; 
and  whereas,  said  taxes  so  as  aforesaid  assessed  on  said  land  were  not  paid,  I 
proceeded  at  the  time  and  place  appointed  as  aforesaid  for  the  sale,  to  offer  for 
sale  said  land  by  public  auction  for  the  discharge  and  payment  of  said  taxes 
thereon  with  interest,  and  said  legal  costs  and  charges,  [if  the  sale  is  adjourned 
add  the  following :]  and  no  person  appeared  and  bid  for  an  undivided  part  or 
for  the  whole  of  the  land  thus  offered  for  sale  an  amount  equal  to  the  said  taxes, 
interest,  costs  and  charges,  and  I  thereupon,  at  said  time  and.  place  appointed 
for  said  sale,  adjourned  said  sale  until                             ,  the 

day  of  ,  A.D.  19      ,  at 

o'clock  in  the  noon,  at  the  same  place,  and 

then  and  there  made  public  proclamation  of  said  adjournment;  [if  there  are 
several  adjournments  use  the  following:]  and  in  like  manner  in  all  respects  and 
for  the  same  cause,  I  adjourned  said  sale  [here  state  the  successive  dates,  hours 
and  places  to  which  the  sale  was  adjourned],  and  then  and  there  made  public 
proclamation  of  said  adjournments;  and  at  the  time  and  place  so  fixed  and 
proclaimed  for  making  said  sale  on  each  of  the  several  days,  I  proceeded  to 
offer  for  sale  said  land  by  public  auction  for  the  payment  of  said  taxes,  interest, 
costs  and  charges,  and  no  person  appeared  at  either  time  so  fixed  by  adjourn- 
ment for  said  sale  and  bid  a  sum  equal  to  said  taxes,  interest,  costs  and  charges, 
until  on  the  day  of  .  ,  A.D.  19    ,  the  time  and  place 

so  fixed  for  said  sale  by  the  last  of  the  said  adjournments  [or,  if  there  was  but 
one  adjournment,  use  such  averments  as  will  conform  to  that  fact],  I  proceeded 
again  to  offer  for  sale  by  public  auction  for  the  payment  of  said  taxes,  interest, 
costs  and  charges,  the  smallest  undivided  part  of  said  land  sufficient  for  the 
payment  of  said  taxes  with  interest  and  legal  costs  and  charges;  [//  an  offer 
is  made  for  an  undivided  part  use  the  following :  ]  and  of 

in  the  County  of  and  State  of  offered  at 

said  auction  to  take  one  undivided  part  of  said  land  and  to  pay 

therefor  the  amount  of  said  taxes  with  interest  and  the  legal  costs  and  charges, 
and  that  being  the  smallest  undivided  part  of  said  land  offered  to  be  taken  for  the 
payment  of  said  taxes,  interest,  costs  and  charges,  one  undivided 
part  of  said  land  was  struck  off  to  said 

Therefore,  know  ye,  that  I,  the  said  ,  Collector  of  Taxes  as  afore- 

said, by  virtue  of  the  power  vested  in  me  by  law,  and  in  consideration  of  the 
said  sum  of  dollars  and  cents  to  me  paid  by  said 


Collection  of  Local  Taxes  .  417 

G.  L.  c.  60,  §  105] 

,  the  receipt  whereof  I  do  hereby  acknowledge,  do  hereby  give,  grant, 
bargain,  sell   and  convey  unto  the   said  one   undivided 

part  of  the  following  described  land,  being  the  land  taxed  as 
aforesaid,  to  wit:      [here   describe    the   land.] 

[If  sale  is  made  of  the  whole,  use  the  following :  ]  and  no  person  offering  at 
said  auction  to  take  an  undivided  part  of  said  land,  the  whole  of  said  land  was 
struck  off  to  of  in  the  County  of  and 

State  of  for  the  sum  of  dollars  and 

cents,  being  the  amount  of  the  taxes  and  necessary  intervening  charges. 

Therefore,  know  ye,  that  I,  the  said  ,  Collector  of  Taxes  as  afore- 

said, by  virtue  of  the  power  vested  in  me  by  law,  and  in  consideration  of  the 
said  sum  of  dollars  and  cents  to  me  paid  by  said 

,  the  receipt  whereof  I  do  hereby  acknowledge,  do  hereby  give, 
grant,  bargain,  sell  and  convey  unto  the  said  the 

following  described  land,  the  same  being  the  land  taxed  as  aforesaid,  to  wit: 
[here  describe  the  land]. 

[In  each  case  conclude  as  follows:] 

To  have  and  to  hold  the  same,  to  the  said  ,  h         heirs  and 

assigns,  to  and  their  use  and  behoof  forever;  subject  to  the  right 

of  redemption  by  any  person  legally  entitled  to  redeem  the  same  and  to  all 
easements  and  restrictions  lawfully  existing  in,  upon  or  over  said  land  or  ap- 
purtenant thereto  when  so  taken. 

And  I,  the  said  Collector,  do  covenant  with  the  said  ,  h  heirs 

and  assigns,  that  the  sale  aforesaid  has,  in  all  particulars,  been  conducted  ac- 
cording to  law. 

In  witness  whereof,  I,  the  said  ,  Collector  as  aforesaid,  have 

hereunto  set  my  hand  and  seal,  this  day   of  ,  in  the 

year  of  our  Lord  one  thousand  nine  hundred  and 


[seal.] 


Collector  of  Taxes  for  the  of 

Signed,  sealed  and  delivered  in  the  presence  of  

ss.  19     . 

Then  personally  appeared  the  above  named  ,  Collector  of 

Taxes  for  the  of,  ,  and  acknowledged  the  foregoing 

instrument  to  be  his  free  act  and  deed. 

Before  me, 


Justice  of  the  Peace. 
My  commission  expires  ,  19    . 

No.  11.    Form  of  Deed  when  the  City  or  Town  is  the  Purchaser  under 

Sections  48  and  50. 

Commonwealth    of    Massachusetts. 

To  all  Persons  to  whom  these  Presents  may  come, 

I,  .  Collector  of  Taxes  for  the  [City  or  Town]  of  , 

in  the  County  of  and  Commonwealth  of  Massachusetts, 

Send  Greeting: 

Whereas,  the  Assessors  of  Taxes  of  said  of  ,  in  the 

lists  of  assessments  for  taxes,  which  they  committed  to  me  to  collect  for  the 
year  one  thousand  nine  hundred  and  ,  duly  assessed  as 

owner    or    occupant    of    the    land    in    said  ,    which    is    hereinafter 

described,  the  sum  of  dollars  and  cents,  for  State, 

County  and  [City  or  Town]  Taxes  thereon ;  and  whereas,  on  the 
day  of  ,  A.D.  19      ,  I  duly  demanded  of  said  [if  the  demand  was 


418  .  Taxation   in   Massachusetts 

[G.  L.  c.  60,  §  105 
made  on  a  mortgagee  or  an  attorney  oj  a  non-resident  owner,  here  insert  the 
fact]  the  payment  of  said  taxes,  so  as  aforesaid  assessed  on 

said  land,  and  the  same  were  not  paid;  and  whereas,  after  the  expiration  Of 
fourteen  days  from  the  time  of  demanding  payment  of  said  taxes  as  aforesaid, 
the  same  still  remaining  unpaid,  I  duly  advertised  that  the  smallest  undivided 
part  of  said  land  sufficient  to  satisfy  said  taxes  with  interest  and  all  legal  costs 
and  charges,  or  the  whole  of  said  land  if  no  person  offers  to  take  an  undivided 
part  thereof,  would  be  sold  by  public  auction  for  the  payment  of  said  taxes 
with  interest,  and  all  legal  costs  and  charges,  on  the  day  of 

,  a.d.  19        ,  at  o'clock  in  the  noon,  at  the 

,  in  said  ,  by  publishing  an  advertisement  thereof, 

containing  also  a  substantially  accurate  description,  and  the  names  of  all  owners 
of  said  land,  and  the  amount  of  the  taxes  so  as  aforesaid  assessed  thereon,  in 
the  ,  a  newspaper  published  in  ,  in  the  County  where 

said  land  lies,  three  weeks  successively,  the  last  publication  whereof  was  at  least 
one  week  before  the  time  appointed  for  the  sale,  and  by  posting  the  said  adver- 
tisement in  public  and  convenient  places  in  said  ,  to 
wit:  the  ,  three  weeks  before  the  time  appointed  for  said  sale; 
and  whereas,  said  taxes  so  as  aforesaid  assessed  on  said  land  were  not  paid,  I 
proceeded  at  the  time  and  place  appointed  as  aforesaid  for  the  sale,  to  sell  said 
land  by  public  auction  for  the  discharge  and  payment  of  said  taxes  thereon  with 
interest,  and  said  legal  costs  and  charges  and  no  person  appeared  and  bid  for 
the  estate  thus  offered  for  sale  an  amount  equal  to  the  said  taxes,  interest,  costs 
and  charges,  and  I  thereupon,  at  said  time  and  place  appointed  for  sale,  ad- 
journed said  sale  until  the  day  of  ,  a.d.  19  ,  at 
o'clock  in  the  noon  at  the  same  place,  and  then  and  there  made  public 
proclamation  of  said  adjournment;  and  in  like  manner  in  all  respects  and  for 
the  same  cause  I  adjourned  said  sale  [here  state  the  successive  dates,  hours 
and  places  to  which  the  sale  was  adjourned],  and  then  and  there  made  public 
proclamation  of  said  adjournments;  and  at  the  time  and  place  so  fixed  and 
proclaimed  for  making  said  sale  on  each  of  said  several  days,  I  proceeded  to 
offer  for  sale  said  real  estate  by  public  auction  for  the  payment  of  said  taxes, 
interest,  costs  and  charges,  and  no  person  appeared  at  either  time  so  fixed  by 
adjournment  for  said  sale  and  bid  a  sum  equal  to  said  taxes,  interest,  costs  and 
charges,  and  at  the  time  and  place  so  fixed  for  said  sale  by  the  last  of  the  said 
adjournments,  namely,  on  the  day  of  ,  a.d.  19  , 
at  o'clock  in  the  noon,  I  made  a  public  declaration  of 
all  the  facts  hereinbefore  recited;  and  no  person  then  appeared  and  bid  a  sum 
equal  to  said  taxes,  interest,  costs  and  charges  [if  only  one  adjournment  is  made, 
change  these  averments  to  conform  to  the  facts] ;  and  I  thereupon  then  and 
there  immediately  gave  public  notice  that  I  should,  and  that  I  then  and  there 
did  purchase  on  behalf  of  -the  said  of  ,  said  real  estate 
for  the  sum  of  dollars  and  cents,  being  the  amount 
of  said  taxes,  interest,  costs  and  charges; 

Therefore  know  ye,  that  I,  the  said  ,  Collector  of  Taxes  as  afore- 

said, by  virtue  of  the  power  vested  in  me  by  law,  and  in  consideration  of  the 
premises,  hereby  give,  grant,  bargain,  sell  and  convey  unto  the  said 
of  ,  the  following  described  real  estate,  the  same  being  the  land  taxed 

as  aforesaid,  to  wit:     [here  describe  the  estate.] 

To  have  and  to  hold  the  same,  to  the  said  [City  or  Town]  of  ,  and 

its  assigns,  to  its  and  their  use  and  behoof  forever;  subject  to  the  right  of 
redemption  by  any  person  legally  entitled  to  redeem  the  same  and  to  all  ease- 
ments and  restrictions  lawfully  existing  in,  upon  or  over  said  land  or  appurte- 
nant thereto  when  so  taken. 

And  I,  the  said  Collector,  do  covenant  with  the  said  of  , 

and  its  assigns,  that  the  sale  aforesaid  has,  in  all  particulars,  been  conducted 
according  to  law. 

In  witness  whereof,  I,  the  said  ,  Collector  as  aforesaid,  have 


Collection  of  Local  Taxes  419 

G.  L.  c.  60,  §  105] 

hereunto  set  my  hand  and  seal,  this  day  of  ,  in  the 

year  of  our  Lord  one  thousand  nine  hundred  and 

[seal.] 

Collector  of  Taxes  for  the  of  < 

Signed,  sealed  and  delivered  in  presence  of 

ss.  19    . 

Then  personally  appeared  the  above  named  ,  Collector  of 

Taxes  for  the  of  ,  and  acknowledged  the  foregoing 

instrument  to  be  his  free  act  and  deed. 

Before  me, 


Justice  of  the  Peace. 
My  commission  expires  ,  19 

No.  12.     Form  of  Deed  to  City  or  Town,  when   the  Purchaser  fails  to 

pay,  etc.,  under  sections  49  and  50. 

Commonwealth    of    Massachusetts. 

To  all  Persons  to  whom  these  Presents  may  come, 

I,  ,  Collector  of  Taxes  for  the  [City  or  Town]  of  , 

in  the  County  of  and  Commonwealth  of  Massachusetts, 

Send  Greeting: 

Whereas,  the  Assessors  of  Taxes  of  said  of  ,  in 

the  lists  of  assessments  for  taxes,  which  they  committed  to  me  to  collect  for 
the  year  one  thousand  nine  hundred  and  ,  duly  assessed 

as  owner  or  occupant  of  the  land  in  said  ,  which  is  hereinafter  de- 

scribed, the  sum  of  dollars  and  cents,  for  State,  County 

and   [City  or  Town]  Taxes  thereon;  and  whereas,  on  the  day  of 

,  aj>.  19  ,  I  duly  demanded  of  said  [if  the  demand  was  made, 
on  mortgagee  or  an  attorney  of  a  no  -resident  owner,  here  insert  the  fact] 
the  payment  of  said  taxes,  so  as  aforesaid  assessed  on  said  land, 
and  the  same  were  not  paid;  and  whereas,  after  the  expiration  of  fourteen  days 
from  the  time  of  demanding  payment  of  said  taxes  as  aforesaid,  the  same  still 
remaining  unpaid,  I  duly  advertised  that  the  smallest  undivided  part  of  said 
land  sufficient  to  satisfy  said  taxes  with  interest  and  all  legal  costs  and  charges, 
or  the  whole  of  said  land  if  no  person  offers  to  take  an  undivided  part  thereof, 
would  be  sold  by  public  auction  for  the  payment  of  said  taxes  with  interest, 
and  all  legal  costs  and  charges,  on  the  day  of  ,  a.D. 

19      ,  at  o'clock  in  the  noon,  at  the  , 

in  said  ,  by  publishing  an  advertisement  thereof,  containing  also  a 

substantially  accurate  description,  and  the  names  of  all  owners  of  said  land 
known  to  me,  and  the  amount  of  the  taxes  so  as  aforesaid  assessed  thereon,  in 
the  ,  a  newspaper  published  in  ,  in  the 

County  where  said  land  lies,  three  weeks  successively,  the  last  publication 
whereof  was  one  week  before  the  time  appointed  for  the  sale,  and  by  posting 
the    said    advertisement   in  public    and   convenient   places    in   said 

,  to  wit:    the  ,   three   weeks  before   the   time 

appointed  for  said  sale;  and  whereas,  said  taxes  so  as  aforesaid  assessed  on  said 
land  were  not  paid,  I  proceeded  at  the  time  and  place  appointed  as  aforesaid 
for  the  sale,  to  sell  said  land  by  public  auction  for  the  discharge  and  payment  of 
said  taxes  thereon  with  interest,  and  said  legal  costs  and  charges,  and,  no 
person  offering  to  take  an  undivided  part  of  the  land  for  the  amount  of  the 
taxes  and  necessary  intervening  charges,  the  whole  of  the  said  real  estate  was 
struck  off  to  of  in  the  County  of 

and  State  of  for  the  sum  of  dollars  and 

cents,  being  the  amount  of  the  taxes  and  necessary  intervening  charges;  and 


420  Taxation   in   Massachusetts 

[G.L  c,  60,  §105 
whereas,  the  said  failed  to  pay  to  me  the  sum   offered  by  him  as 

aforesaid,  and  receive  his  deed  of  the  premises  bid  off  by  him,  within  twenty 
days  after  the  said  sale,  and  the  said  sale  became  null  and  void,  and  the  said 
of  thereby   became   the  purchaser   of  the 

the  premises  so  bid  off  by  the  said  for  the  sum  of 

dollars  and  cents,  being  the  amount  of  said  taxes,  interest, 

costs  and  charges; 

Therefore  know  ye,  that  I,  the  said  ,  Collector  of  Taxes  as 

aforesaid,  by  virtue  of  the  power  vested  in  me  by  law,  and  in  consideration  of 
the  premises,  hereby  give,  grant,  bargain,  sell  and  convey  unto  the  said 

of  ,  the  following  described  real  estate,  the  same  being 

the  land  taxed  as  aforesaid,  to  wit:     [here  describe  the  estate.'] 

To  have  and  to  hold  the  same,  to  the  said  of  ,  and 

its  assigns,  to  its  and  their  use  and  behoof  forever;  subject  to  the  right  of  re- 
demption by  any  person  legally  entitled  to  redeem  the  same,  and  to  all  ease- 
ments and  restrictions  lawfully  existing  in,  upon  or  over  said  land  or  appurte- 
nant thereto  when  so  taken. 

And  I,  the  said  Collector,  do  covenant  with  the  said  of 

and  its  assigns,  that  the  sale  aforesaid  has  in  all  particulars  been  conducted  ac- 
cording to  law. 

In  witness  whereof,  I,  the  said  ,  Collector  as  aforesaid,  have 

hereunto  set  my  hand  and  seal,  this  day   of  ,  in 

the  year  of  our  Lord  one  thousand  nine  hundred  and 

[seal.] 

Collector  of  Taxes  for  the  of 

Signed,  scaled  and  delivered  in  the  presence  of 

ss.  19    . 

Then  personally  appeared  the  above  named  ,  Collector  of 

Taxes  for  the  of  ,  and  acknowledged  the  foregoing 

instrument  to  be  his  free  act  and  deed. 

Before  me, 


Justice  of  the  Peace. 
My  commission  expires  ,  19 

No.  13.    Form  of  Notice  of  Intention  to  take  Real  Estate  under  Section  53. 

collector's  notice. 

The  owners  and  occupants  of  the  following  described  parcels  of  real  estate 
situate  in  the  of  ,  in  the  County  of  , 

and  Commonwealth  of  Massachusetts,  and  all  other  persons,  are  hereby  noti- 
fied that  the  taxes  thereon,  severally  assessed  for  the  year  hereinafter  specified, 
according  to  the  list  committed  to  me  as  Collector  of  Taxes  for  the  said 
of  ,  by  the  Assessors  of  Taxes  of  said  ,  remain 

unpaid,  and  that  said  parcels  of  real  estate  will  be  taken  for  the  said 

of  ,  on  the  day  of  A.D. 

19      ,  at  o'clock  m\,  for  the  payment  of  said  taxes,  together  with 

the   interest,  costs  and  charges  thereon,   unless  the   same   shall  be   previously 
discharged.    [Here  state  the  names  of  the  person  assessed,  and  all  owners  known' 
to  the  collector,  a  description  of   the  parcel  or  parcels  of  lands,  the  year  for 
which  the  taxes  were  assessed,  and  the  sum  assessed  upon  each  parcel.] 


Collector  of  Taxes  for  the  of 

No.  14.     Form  of  Taking  of  Real  Estate  under  Section  54. 

Whereas,  the  tax  assessed  by  the  assessors  of  as  of  the  first 

day  of  April,  in  the  year  19     ,  upon  as  the  owner  or  occupant  of 

the  real  estate  hereinafter  described,  was  duly  committed  to  me  as  Collector 


Collection  of  Local  Taxes  421 

G.  L.  c.  60,  §  105] 

of  Taxes  for  said  of  ;  and  whereas,  the  said  taxes, 

amounting  to  dollars  and  cents,  have  not  been  paid; 

and  whereas,  a  demand  for  the  payment  of  said  taxes  and  the  interest,  costs 
and  charges  then  due  was  made  by  me  on  the  said  on  the 

day  of  ,  last  past,  in  confonnity  to  law;  and  whereas,  notice  of  my 

intention  to  take  said  real  estate  by  virtue  of  the  authority  vested  in  me  as  Col- 
lector of  Taxes  for  said  has  been  duly  given,  as  by  law  required;  and 
whereas,  the  said  taxes,  at  the  date  of  this  instrument,  remain  unpaid;  now, 
therefore,  KNOW  ALL  MEN  BY  THESE  PRESENTS,  that  I, 
as  Collector  of  Taxes  as  aforesaid,  by  virtue  of  the  power  and  authority  in  me 
vested  as  aforesaid,  have  taken,  and  by  these  presents  do  take,  for  the  said 
of  ,  subject  to  redemption  according  to  law,  and  to  all  ease- 
ments and  restrictions  lawfully  existing  in,  upon  or  over  said  land  or  appurte- 
nant thereto  when  so  taken,  the  following  described  lot  or  parcel  of  land, 
with  the  buildings  thereon,  the  same  being  the  estate  assessed  as  aforesaid,  to 
wit:  [here  describe  the  estate.]  The  said  is  the  only  person 
known  to  me  as  owner  of  the  above  described  estate.  [//  the  foregoing  state- 
ment is  not  true,  state  the  names  of  all  owners  known  to  the  collector.] 
In  witness  whereof,  I,  the  said  ,  as  Collector  as  aforesaid, 
hereunto  set  my  hand  and  seal  this  day  of  ,  in  the 
year  nineteen  hundred  and 

[seal.] 

Collector  oj  Taxes  for  the  of 

No.  15.  Form  of  Affidavit  under  Section  57  of  Collector,  Deputy  Col- 
lector or  Disinterested  Person  to  be  recorded  in  the  Registry  of  Deeds 
that  Demand  has  been  made. 

S,  ,  19       . 

I    [A   B,   Collector,  Deputy   Collector   or  a   disinterested   person,]    hereby 
certify  that  on  the  day  of  ,  19      ,  I  served  upon 

[or  witnessed  the  service  upon  of]  a  demand  for  the  pay- 
ment of  a  tax  of  dollars  assessed  upon  him  by  the  assessors  of 
,  in  19  ,  upon  the  estate  in  said  [here  give 
a  substantially  accurate  description  of  the  estate],  with  a  notice  that  if  said; 
amount  and  interest  thereon,  together  with  the  legal  costs  and  charges,  were  not 
paid  within  fourteen  days  from  the  date  thereof,  the  said  estate  would  be 
sold   by   public   auction,   pursuant   to   law. 


Commonwealth    of    Massachusetts. 

,  ss.  19 

Then  personally  appeared  the  said  ,  and  made  oath  that  this  statement 

by  him  subscribed  is  true. 

Before  me, 


Justice  of  the  Peace. 
My  commission  expires  ,  19 

No.  16.     Form  of  Affidavit  under  Section  57,  as  to  Demand,  when   the 
Demand  is   made  upon  Two  or  more  Persons. 

S,  ,  19    . 

I  [A  B,  Collector,  Deputy  Collector  or  a  disinterested  person,]  hereby  cer- 
tify that  on  or  since  the  day  of  19  ,  I  served  for 
witnessed  the  service]  on  each  of  the  parties  hereafter  mentioned,  on  the 
date  and  in  the  manner  specified,  as  may  be  seen  by  reference  to  their 
respective  names,  [of]  a  demand  like  the  blank  hereunto  attached,  the  blanks 
being  first  filled  wih  the  date,  name,  amount  of  the  tax,  and  location  of  the 
real  estate. 


422  Taxation   in   Massachusetts 

[G.  L.  c.  60,  §  105 


Names. 


Amount  of  Tax. 


Manner  and  Date  of  Service. 


Commonwealth    of    Massachusetts. 

,    S3.  S,  ,    19      . 

Then  personally  appeared  the  said  ,  and  made  oath  that  the  above 


statement  by  him  subscribed  is  true. 


Before  me, 

Justice  of  the  Peace. 


My  commission  expires  ,  19 

[Here  annex  the  blank  form,  No.  8,  referred  to  in  the  affidavit.] 

No.   17.     Form  of  Affidavit  under  Section  57  of  Posting  and  Publishing 

Advertisement  of  Sale. 

S,  ,  19 

•    I,  A  B,  of  ,  in  the  County  of  ,  and 

Commonwealth  of  Massachusetts  [Collector,  Deputy  Collector  or  a  disinterested 
person,]  hereby  certify  that  three  weeks  before  the  time  of  sale  I  posted  [or 
witnessed  the  posting]  pursuant  to  law  [of]  the  printed  notice  of  the  Collector 
of  Taxes,  a  copy  whereof  is  hereto  annexed,  in  a  convenient  and  public  place  in 
his  precinct,  to  wit:    the  ,  in  said  [here  name  the  city  or  town],  and 

that  said  notice  was  advertised  three  weeks  successively  in  the  ,  a 

newspaper  published  in  [here  name  the  city  or  town,  or  if  there  is  no  such 
newspaper,  state  that  fact  and  add:  in  said  County],  the  last  publication  being 
at  least  one  week  before  the  advertised  time  of  sale,  in  accordance  with  law. 

A  B. 
Commonwealth    of    Massachusetts. 

H  ,  ss.  S,  ,  19      . 

Then  personally  appeared  the  above  named  ,  and  made  oath 

that  the  foregoing  statements  by  him  subscribed  are  true. 

Before  me, 


Justice  of  the  Peace. 
My  commission  expires  ,  19 

[Here  annex"  a  copy  of  the  advertisement.] 

No.    18.     Form  of  Affidavit  under  Section  57  of  Demand  and   Notice  to 

BE   ANNEXED   TO   THE   INSTRUMENT   OF   TAKING. 

I,  C  D,  of  in  the  County  of  ,  and 

Commonwealth  of  Massachusetts,  on  oath  depose  and  say  that  on  the 

day  of  ,  a.d.  19     ,  I  as  Collector  of  Taxes  for  the  of 

,  made  a  written  demand  on  for  the  amount  of  the 

tax  assessed  by  the  assessors  of  said  of  ,  as  of  the 

first   day  of  April,  a.d.   19     ,  upon  the  said  ,  with  the  interest, 

costs  and  charges,  then  due,  on  certain  real  estate  situated  in  said 
of  ,  by  [here  state  manner  in  which  the  demand  was  made],  of 

which  the  following  is  a  true  copy: 

"C,  ,  19      . 

To  ,  I  hereby  demand  of  you  the  payment  of 

dollars  and  cents,  that  being  the  amount  of  tax  assessed  for  the 


Collection  of  Local  Taxes  423 

G.  L.  c.  60,  §  105J 

year  19  by  the  assessors  of  ,  on  the  real  estate  [here  describe  the 

estate]  owned  by  you.  You  are  hereby  notified  that  if  said  amount,  together 
with  the  interest,  costs  and  charges  thereon,  is  not  paid  within  fourteen  days 
from  this  date,  the  said  real  estate  will  be  taken  for  said  taxes  for  the  said  [city 
or  town]   of  .     Tax,  $  ;   interest,  costs  and  charges, 

C  D, 

Collector  of  Taxes  for  the  of  ." 

[If  notice  is  published  and  posted,  add:]     And  I,  the  said  C  D,  do  further 
depose  and  say  that  I  posted  and  published  notices,  of  which  the  following  is  a 
copy  [!»ere  annex  a  copy  of  the  notice],  as  follows:     A  copy  thereof  was  posted 
on  [here  state  where  posted],  and  I  also  published  a  copy  of  said  notice  in  the 
,  a  newspaper  published  in  said  [if  there  be  no  such 

paper  published  in  said  town,  state  the  fact  and  add,  "in  in  said 

county"],  three  weeks  successively,  that  the  posting  of  said  notices  and  the 
first  publication  thereof  were  more  than  fourteen  days  after  making  the  demand 
as  aforesaid ;  and  I  do  further  depose  and  say  that,  at  the  date  of  the  instrument 
of  taking,  hereto  annexed,  the  amount  of  taxes  due  on  the  estate  therein  de- 
scribed, with  the  interest,  costs  and  charges,  amounted  to  the  sum  of 
dollars  and  cents,  and  that  the  parcel  or  parcels  of  land  were  taken 

for  the  reason  that  the  taxes  remained  unpaid  at  the  time  of  the  said  taking. 


Collector  of  Taxes  for  the  of 

ss.  ,  19      . 

Then  personally  appeared  the  above  named  C  D,  and  made  oath  that  the 
foregoing  affidavit  by  him  subscribed  is  true. 

Before  me, 


Justice  of  the  Peace. 
My  commission  expires  ,  19 

No.  19.    Form  of  Deed  by  City  or  Town  when  Estate  is  redeemed  under 
Section  62,  to  be  executed  by  the  Proper  Officers  of  the  City  or  Town. 

know   all    men    by   these   presents, 

That  the  of  ,  in  consideration  of  ,  to  it 

paid  by  of  ,  the  receipt  whereof  is  hereby  acknowledged, 

does  hereby  remise,  release,  and  forever  quitclaim  unto  the  said  all 

fe*  t  right,  title  and  interest  which  the  said  of  acquired,  by 

or  under  a  deed  made  to  it  [or  taking  made  in  its  behalf]  by  ,  the 

Collector  of  Taxes  for  said  city  [or  town]  of  ,  dated  the 

day  of  in  the  year  of  our  Lord  one  thousand  nine  hundred  and 

,  and  recorded  with  Deeds,  Volume  Page 

in  and  to  the  following  parcel  of  real  estate  in  said  ,  viz.: 

[here  describe  the  real  estate.] 

To  have  and  to  hold  the  above  released  premises,  with  all  the  privileges  and 
appurtenances  to  the  same  belonging,  to  the  said  ,  h  heirs 

and  assigns,  to  h  and  their  use  and  behoof  forever. 

In  witness  whereof,  the  said  of  has  caused  its 

corporate  seal  to  be  hereunto  affixed,  and  these  presents  to  be  signed,  acknowl- 
edged and  delivered  in  its  name  and  behalf  by  ,  its  , 
hereto  duly  authorized,  this  day  of  ,  in  the  year  of 
our  Lord  nineteen  hundred  and 

City  [or  Town]  of  [seal.] 

Signed  and  sealed  in  the  presence  of 

By 

ss.  19     . 


424  Taxation    in    Massachusetts 

[G.  L.  c.  60,  §  105 
Then  personally  appeared  the  above  named  ol 

for  the  city  [or  town]  of  ,  and  acknowledged  the  fore- 

going instrument  to  be  the  free  act  and  deed  of  said  city  [or  town]  of 

Before  me, 


Justice  of  the  Peace. 
My  commission  expires  ,  19 

No.  20.     Form  of  Certificate  under  Section  63. 

Whereas,  I,  ,  Collector  of  Taxes  for  the  of 

,  County  of  and  Commonwealth  of  Massachusetts,  for 

the  year  19      ,  did  sell  and  convey  certain  real  estate  to  by  deed 

dated  ,  19    ,  and  recorded  in  the  Registry  of  Deeds, 

in  Book  Page  ,  for  the  non-payment  of  a  tax  as- 

sessed thereon  to  in  the  year  19      ,  which  real  estate  is  described 

as  follows,  viz:    [here  describe  the  real  estate.]    And  Whereas 
of  in  the  County  of  and  State  of  was 

assessed  ,19  ,  as  owner  or  occupant  of  said  property,  and  he 

alleges  that  he  is  a  person  having  an  interest  in  the  property  and  as  such  desires 
to  redeem  the  same  from  the  sale  in  pursuance  of  Section  62  of  Chapter  60  of  the 
General  Laws; 

And  Whereas  the  said  has  this  day  paid  to  me  the  following 

sums  to  redeem  said  property  from  said  sale,  to  wit: 

Amount   for   which   it   was   sold,        ........$ 

Interest  at  8%    from   date   of  sale,       ....... 

Examination   of   Title, 

Deed  of  Release,  \ 
Recording,               ) 
Additional   sum    as   per   statute,        1  00 


S 

Therefore,  I,  the  said  Collector  of  Taxes,  for  the  said  of 

hereby  certify  that  I  have  received  from  the  said  the  said  sum  of 

dollars  and  cents,   ($  )   for  the  purpose 

aforesaid.  

Dated  this  day  of  ,  a.d.  19 

Collector  of  Taxes  for  the  of 

No.  21.    Form  of  Receipt  by  Collector  to  a  Mortgagee,  under  Section  58. 

S,  ,  19      . 

I,  ,  Collector  of  Taxes  for  the  of  , 

hereby  certify  that  the  Assessors  of  Taxes  of  said  of  ,  in 

the  list  of  assessments  for  taxes,  which  they  committed  to  me  to  collect  for  the 
year  one  thousand  nine  hundred  and  ,  duly  assessed 

the  sum  of  dollars  and  cents,  as  owner  or  occupant  of  the 

real  estate  situated  and  described  as  follows,  viz.:  [here  describe  the  real  estate.] 
and  I  further  certify  that  the  said  negected  to  pay 

such  tax  within  the  year  for  which  it  was  assessed,  and  that 
who  claims  to  be  the  holder  of  a  mortgage  upon  said  real  estate,  has  paid  to  me 
the  sum  of  dollars  and  cents,  being  the  amount  of 

said  tax,  with  all  interest,  costs  and  charges,  the  receipt  of  which  I  hereby 

acknowledge.  

Collector  of  Taxes  for  the  of 

ss.  ,  19 


Collection  of  Local  Taxes  425 

G.  L.  c.  60,  §  105] 

Then  personally  appeared  the  above  named  and  made  oath 

that  the  foregoing  statement  by  him  subscribed  is  true. 


My  commission  expires  .  ,  19 


Before  me, 

Justice  of  the  Peace. 


No.  22.    Forms  of  Notices  when  Tax  Title  is  deemed  Invalid,  under  Sec- 
tions 82  and  84. 

[from   the  assessors   to   the   collector.] 

Office    of   the   Board    of    Assessors,  19    . 

To  the  Collector  of  Taxes  for  the  of 

Sir:    You  are  hereby  notified  that  the  tax  assessed  as  of  the  first  day  of  April, 
19      ,  in  the  name  of  upon  an  estate  estimated  to  contain  [here  in- 

sert area]  land,  situated  [here  insert  the  name  of  street  or  other  descriptions,  was 
invalid  by  reason  of  error  in  assessment;  and  that  any  deed  given  by  you  in 
consequence  of  a  sale  for  the  non-payment  of  such  tax  conveyed  no  valid  title 
to  the  purchaser. 

Board  of  Assessors  of  the  of  ,  by 


One  of  said  Assessors. 


No.  23. 
To 


[from  the  collector  to  the  holder  of  the  title.] 

B,  ,  19 


You  are  hereby  notified  that  I  have  reason  to  believe  that  the  title  conveyed 
to  by  ,  Collector,  and  recorded  with 

Deeds,  Volume  ,  Page  ,  of  an  estate  described,  as  follows 

[here  describe  estate], 


in  the  name  of  ,  is  invalid  by  reason  of  an  error  in  the  assessment  for 

the  year  19        ,  [or  in  the  proceedings  for  the  sale.]     [Here  give  a  brief  state- 
ment of  the  defect] : 


and  I  do  hereby,  notify  and  require  you,  within  thirty  days  from  the 
time  when  this  notice  shall  be  served  upon  you,  to  surrender  and  discharge  the 
deed  so  given,  and  to  receive  from  the  of  the  sum  due 

therefor,  with  interest  as  provided  by  law,  or  to  file  with  the  Collector  a  written 
statement  that  you  refuse  to  make  such  surrender  and  discharge. 


Collector  of  Taxes  for  the  of 


CHAPTER    61 
TAXATION  OF  FOREST  LANDS 

The  taxation  of  land  covered  with  growing  trees  has  always 
presented  peculiar  problems.  In  the  case  of  a  tree  suitable 
for  conversion  into  lumber,  it  can  be  sold  and  utilized  but  once ; 
but  it  may  be  taxed  ten,  twenty  or  fifty  times;  that  is,  every 
year  from  the  time  its  potential  use  begins  to  add  value  to  the 
land  until  it  is  actually  cut,  or  destroyed  by  fire  or  storm.  Under 
the  constitutional  requirement  of  proportional  taxation  the 
assessors  were  bound  to  assess  standing  timber  each  year  to  the 
full  amount  of  the  value  which  its  presence  added  to  the  land. 
Many  persons  felt  that  such  taxation  not  only  was  unjust  in 
itself,  but  that  it  resulted  in  the  general  deforestation  of  the  com- 
monwealth, with  all  the  incidental  evils  which  such  a  condition 
brings  about. 

In  1878  provision  was  made  by  statute  for  an  exemption 
for  a  ten  year  period  of  land  of  little  value  upon  which  trees  of 
certain  species  had  been  planted.1  This  statute,  with  certain 
amendments,2  remained  on  the  statute  books  until  1914.3  It  was 
probably  unconstitutional,  as  a  violation  of  the  requirement  of 
proportionality  in  taxation,4  but  it  contained  so  many  restric- 
tions and  limitations  that  it  was  rarely  invoked  and  its  consti- 
tutionality was  never  passed  upon  by  the  court. 

In  1912  the  Forty-first  Amendment  to  the  Massachusetts 
constitution  was  adopted,  providing  as  follows: 

"Full  power  and  authority  are  hereby  given  and  granted  to  the 
general  court  to  prescribe  for  wild  or  forest  lands  such  methods  of 
taxation  as  will  develop  and  conserve  the  forest  resources  of  the 
commonwealth. ' ' 

In  1914  the  legislature,  under  the  authority  of  the  foregoing 
amendment,  enacted  a  statute  providing  an  elaborate  system 

•St.  1878,  c.  131. 

■  St.  1880,  c.  109;  St.  1908,  c.  120. 

3St.  1914,  c.  598,  §26. 

4Supra,  Part  I,  §53. 

426 


Taxation  of  Forest  Lands  427 

G.  L.  c.  61] 

for  the  taxation  of  forest  lands  which  it  was  hoped  would  bring 
about  the  rapid  reforestation  of  land  suitable  for  no  other  pur- 
pose and  thus  enhance  the  general  prosperity  of  the  common- 
wealth.5 The  statute  has  however  as  yet  been  but  little  used. 
It  is  applicable  only  to  woodland  classified  as  woodlot  or  plan- 
tation upon  the  petition  of  the  owner,  and  by  1920  not  more 
than  twenty  lots  in  the  entire  state  had  been  so  classified.6 

The  object  of  the  statute  is  to  bring  about  the  cutting  of 
mature  trees  but  at  the  same  time  to  encourage  the  planting  of 
young  trees  to  take  their  place  and  the  growth  of  immature  trees 
until  they  are  fit  for  cutting.  This  object  was  sought  to  be  at- 
tained by  imposing  upon  classified  forest  land  (1)  a  forest  land 
tax,  upon  the  value  of  the  land  exclusive  of  the  trees  thereon,  to 
be  assessed  and  collected  annually  at  the  local  rate  in  the  same 
manner  as  local  taxes  generally;  (2)  a  forest  product  tax  on 
the  value  of  cut  timber,  payable  when  the  timber  is  cut,  at  a 
rate  specified  in  the  statute  and  increasing  gradually  to  six  per 
cent  after  April  1,  1939;  (3)  a  forest  commutation  tax,  equal  to 
the  difference  between  the  amount  of  tax  upon  the  land  imme- 
diately before  it  was  classified  and  the  forest  land  tax  immedi- 
ately after  it  was  classified,  payable  annually,  and  subject  to 
reduction  each  year  upon  land  with  respect  to  which  forest  pro- 
duct tax  has  been  paid  in  the  same  proportion  as  the  stumpage 
value  of  the  trees  cut  bears  to  the  stumpage  value  of  the  trees 
on  the  lot  at  the  date  of  classification. 

By  these  provisions  the  owner  is  taxed  only  once  for  the 
increment  in  value  of  growing  trees  accruing  after  the  date  of 
classification.  It  is  expected  that  legislation  will  be  enacted 
shortly  which  will  carry  the  same  principle  into  effect  without 
the  extremely  complicated  administrative  provisions  of  the 
present  law. 


B  St.  1914,  c.  598,  now  G.  L.  c.  61. 

«  See  1920  Pub.  Doc.  No.  19,  Table  V. 


CHAPTER    62 

TAXATION  OF  INCOMES 

Origin  and  Purpose  of  the  Income  Tax 

To  understand  the  apparently  complicated  statutory  system 
which  provides  for  the  taxation  of  incomes,  it  is  necessary  to 
have  some  knowledge  of  the  causes  which  led  to  the  enactment 
of  the  income  tax  law  and  the  evils  which  it  was  intended  to 
remedy.  The  real  object  of  the  statute  was  not  to  produce  addi- 
tional revenue  for  the  public  use,  but  to  provide  a  more  satis- 
factory system  for  the  taxation  of  intangible  personal  property 
than  that  which  had  been  in  use  since  intangible  property  had 
come  into  existence. 

The  principles  which  governed  the  taxation  of  personal  prop- 
erty from  the  earliest  settlement  of  the  colony  were  simple: 
all  personal  property  was  taxable  at  the  domicile  of  the  owner, 
and  all  personal  property  taxable  within  a  town  was  taxed  on  its 
capital  value  at  the  same  rate  as  real  estate.  While  all  the 
personal  property  of  each  individual  was  tangible  and  visible 
and  kept  in  the  town  in  which  he  dwelt  or  in  one  of  the  neighbor- 
ing towns,  it  was  an  easy  matter  to  assess  such  property,  and  on 
the  other  hand  it  was  in  no  danger  of  being  taxed  directly  or 
indirectly  more  than  once.  The  first  complications  arose  when  it 
became  customary  for  persons  keeping  shops  or  stores  or  main- 
taining factories  in  one  of  the  larger  towns  to  dwell  in  a  different 
town,  either  because  the  other  town  was  a  more  attractive  place 
of  residence  or  because  the  rate  of  taxation  was  lower  there, 
but  a  proper  means  of  dealing  with  this  situation  was  soon  de- 
vised.1 When  corporations  began  to  be  formed  in  Massachusetts 
new  difficulties  arose,  but  they  have  been  met  and  overcome, 
and  while  the  laws  for  the  taxation  of  Massachusetts  corpora- 
tions and  their  stockholders  may  not  even  yet  have  been  wholly 

'The  annual  tax  act  of  1742-3  contained  a  provision  for  the  taxation  of 
stock  in  trade  of  merchants,  traders  and  factors  in  the  town  where  the  business 
was  carried  on  (St.  1742-3,  c.  31,  §8)  and  this  provision,  with  some  modifica- 
tions, was  continued  in  force  until  1918,  when  tangible  personal  property  gen- 
erally was  made  taxable  where  situated. 

428 


Taxation  of  Incomes  429 

G.  L.  c.  62] 

perfected,  as  tax  laws  they  meet  the  requirements  of  justice 
in  taxing  all  the  property  of  corporations  once,  and  only  once.2 
It  was  the  taxation  of  bonds,  notes  and  other  evidences  of 
indebtedness  and  of  the  stocks  of  foreign  corporations,  in  which 
a  large  proportion  of  the  wealth  of  Massachusetts  is  invested, 
that  caused  the  chief  difficulty.    In  the  first  place,  the  holders  of 
much  of  such  property  who  did  business  and  dwelt  in  the  win- 
ter months  in  large  cities  where  the  tax  rate  was  high  and  the 
assessors  alert  often  had  summer  residences  in  small  towns  in 
which  the  tax  rate  was  low,  and  by  a  mere  assertion  of  change  of 
their  inward  intent  they  became  legal  residents  in  the  smaller 
towns  and  thus,  even  if  they  were  assessed  for  all  their  property, 
escaped  a  large  proportion  of  the  tax  which  they  would  have 
been  bound  to  pay  if  they  had  retained  their  domicile  in  the 
towns  with  which  all  their  real  associations  and  interests  re- 
mained.    This  evil  was  aggravated  by  the  inevitable  effect  of 
such  asserted  changes  in  domicile  in  making  the  tax  rate  of 
the  towns  in  which  domicile  was  claimed  grow  lower  and  lower 
as  the  aggregate  of  taxable  property  was  thus  illegitimately 
increased,  while  the  tax  rate  of  the  cities  deserted,  for  purposes 
of  assessment  only,  by  their  wealthiest  inhabitants  was  cor- 
respondingly increased.    Furthermore,  when  a  small  town  might 
acquire  an  increase  of  its  taxable  property  by  the  mere  assertion 
of  a  wealthy  summer  resident's  intent  to  make  it  his  legal 
domicile,  the  temptation  to  an  express  or  implied  understanding 
that  if  the  taxpayer  would  make  the  town  his  domicile  the  asses- 
sors would  deal  leniently  with  him  was  almost  irresistible ;  and,  if 
there  was  no  such  understanding,  the  assessors  of  small  country 
towns  were  seldom  men  of  sufficient  business  experience  to  be 
able  to  make  any  estimate  of  the  probable  wealth  of  the  new- 
comer, or  lacked  the  time  or  means  to  make  an  extensive  exam- 
ination of  the  subject.    Even  if  they  had  the  inclination,  the  time 
and  the  means,  there  was  no  method  by  which  they  could  unearth 
the  holdings  of  one  of  their  summer  residents  in  the  stocks  and 
bonds  of  the  innumerable  corporations  of  other  states  and  other 
countries.     As  a  consequence  of  these  various  influences,  men 
generally  recognized   as  millionaires  escaped  with   a  nominal 
personal  property  tax,  and  hardly  a  fifth  of  the  personal  prop- 
erty in  this  commonwealth  was  subjected  to  taxation ;  and  much 

2  See  G.  L.  c.  63,  infra,  page  505. 


430  Taxation  in  Massachusetts 

[G.  L.  c.  62 

of  that  was  assessed  in  the  towns  whose  tax  rates  were  lowest. 

On  the  other  hand  it  was  contended,  not  without  justice,  by 
men  whose  savings  were  invested  in  bonds  and  notes  or  in  the 
stocks  of  foreign  corporations,  that  the  state  had  no  moral 
right  to  tax  such  property  at  its  full  capital  value;  that  a  bond 
is  a  debt,  and,  when  a  sum  of  money  is  borrowed,  to  tax  the  bor- 
rower for  the  money  and  the  lender  for  the  debt  is  to  assume 
that  the  aggregate  wealth  of  the  world  is  increased  by  every  loan 
that  is  made,  which  is  a  palpable  absurdity ;  and  that  a  share  of 
stock  in  a  corporation  is  merely  a  convenient  means  of  repre- 
senting a  fractional  interest  in  the  property  of  the  corporation, 
and  as  the  property  of  a  corporation  is  taxed  as  such  where  it 
is  located  and  enjoys  the  protection  of  the  government,  to  tax 
the  property  of  the  corporation  as  a  whole  and  the  fractional 
interests  of  its  different  owners  as  well  is  the  most  flagrant  kind 
of  double  taxation.  The  justice  of  such  contentions  was  recog- 
nized by  our  laws  in  the  case  of  the  stock  of  domestic  corpora- 
tions and  in  the  case  of  domestic  mortgages  and  mortgage  bonds, 
but  not  the  slightest  mitigation  was  offered  in  the  case  of  other 
classes  of  bonds  or  notes  or  of  stock  of  foreign  corporations. 
Furthermore  the  tax  on  such  property,  being  based  on  the  value 
of  the  principal  and  not  on  the  income,  might  well  amount  to 
half  the  annual  return  from  the  property,  a  burden  too  severe 
to  be  borne,  and  finally  as  almost  everyone  avoided  payment  of 
the  tax  on  such  property,  a  man  who  disclosed  his  ownership  to 
the  assessors  had  to  bear  a  disproportionate  burden  of  taxation. 
As  a  result  of  these  considerations,  persons  of  the  most  scrupu- 
lous honesty  in  regard  to  private  transactions  did  not  hesitate 
to  avoid  taxation  on  this  class  of  personal  property  in  every 
possible  manner,  and  it  was  rarely  subjected  to  assessment  ex- 
cept at  the  very  time  when  the  tax  bore  most  heavily;  namely 
when  it  was  exposed  to  the  view  of  the  assessors  by  the  death 
of  the  owner  and  the  necessary  publicity  of  the  probate  court; 
and  then,  when  as  by  the  establishment  of  a  trust  it  was  likely 
to  be  so  exposed  for  more  than  a  year,  no  time  was  lost  in  con- 
verting it  into  non-taxable  securities. 

The  difficulties  attending  the  taxation  of  this  class  of  prop- 
erty first  began  to  be  seriously  felt  in  the  middle  of  the  last  cen- 
tury, and  more  and  more  drastic  statutes  were  enacted  to  com- 
pel each   taxable  inhabitant   to  disclose  his   holdings   to   the 


Taxation  of  Incomes  431 

G.  L.  c.  62] 

assessors  but  without  avail.  In  more  recent  years  the  vigorous 
and  well  directed  efforts  of  the  tax  commissioner  and  his  assist- 
ants to  uncover  and  expose  this  class  of  property  and  to  subject 
it  to  taxation  did  in  many  instances  oblige  the  holders  of  the 
property  of  deceased  persons,  some  of  whom  had  left  estates 
of  great  value,  to  submit  for  a  year  or  two  to  the  burden  which 
the  letter  of  the  law  imposed,  but,  as  far  as  any  general  improve- 
ment in  the  taxation  of  intangible  property  was  concerned,  their 
efforts  did  not  have  the  success  hoped  for,  and  chiefly  resulted 
in  greater  and  greater  concentration  of  wealth  in  towns  in  which 
the  tax  rate  was  low,  often  by  virtue  of  purely  colorable 
claims  of  domicile,  and  finally  began  to  drive  capital  out  of  the 
commonwealth  to  states  where  milder  systems  of  taxation  pre- 
vailed. 

The  experience  of  Massachusetts  was  the  experience  of  every 
other  state  which  had  attempted  to  enforce  a  general  uniform 
property  tax  so  as  to  include  intangible  personal  property ;  and  by 
the  beginning  of  this  century  it  was  coming  to  be  generally  under- 
stood that  such  attempts  were  futile  and  defeated  their  own  ends. 
Many  states  had  adopted  systems  for  the  taxation  of  intangible 
property  by  which  all  such  property  was  taxed  at  a  fixed  uniform 
rate,  the  rate  being  much  less  than  the  local  rate  for  the  taxation 
of  real  estate  and  tangible  personal  property.  Such  a  system  was 
suggested  for  Massachusetts  in  1908,  but  was  held  unconstitu- 
tional as  a  violation  of  the  requirement  of  proportionality  in  tax- 
ation.3 Other  states  had  a  registration  tax,  by  which  intangible 
securities  were  exempted  from  direct  taxation  upon  payment  of 
a  registration  fee,  but  this  also  was  held  a  violation  of  the  state 
constitution.4  It  was  sought  to  sustain  a  tax  on  the  income  of 
intangible  property  as  an  excise,  but  this  failed  to  win  the  ap- 
proval of  the  court;5  and  an  attempt  to  justify  on  historical 
grounds  a  tax  on  the  capital  value  of  intangibles  measured  by 
the  multiplication  of  its  annual  return  by  an  arbitrary  figure 
met  with  equally  ill  success.6  Finally,  in  1915,  after  years  of  ef- 
fort, a  remedy  was  made  available  by  the  adoption  of  the  Forty- 
fourth  Amendment  to  the  state  constitution,  authorizing  the 

"Opinion  of  the  Justices,  195  Mass.  607  (1908). 

*  Opinion  of  the  Justices,  220  Mass.  613,  625  (1915)  ;  Perkins  v.  Westwood, 
226  Mass.  268  (1917). 

5  Opinion  of  the  Justices,  220  Mass.  613,  623  (1915). 
•Opinion  of  the  Justices,  220  Mass.  613,  619  (1915). 


432  Taxation  in  Massachusetts 

[G.  L.  c.  62 

levy  of  a  tax  on  incomes,  and  in  the  following  year  the  income 
tax  law  was  enacted;  but,  in  view  of  the  foregoing  statement  of 
the  struggle  which  led  to  its  enactment,  it  will  be  readily  under- 
stood that  it  was  not,  like  the  federal  income  tax  which  was 
first  enacted  in  1913,  a  means  for  providing  additional  revenue 
and  aimed  primarily  at  the  wealthier  classes,  but  was  intended  to 
enable  the  state  to  impose  a  tax  on  intangible  securities  which 
was  capable  of  enforcement  with  some  degree  of  equality  and 
without  driving  capital  out  of  the  state.  So  far  as  it  applied 
to  income  from  property  it  affected  only  the  classes  of  intangible 
property  which  were  previously  taxable  on  their  capital  value  at 
the  local  rate,  and  as  to  such  property  it  reduced  the  tax  from 
a  variable  local  rate,  which  amounted  frequently  to  from  30  to  50 
per  cent  of  the  income,  to  a  fixed  rate  of  6  per  cent,  but  provided 
means  for  the  strict  and  impartial  enforcement  of  the  tax.  To 
other  classes  of  intangible  property,  whether  reached  for  taxa- 
tion by  a  franchise  tax,  such  as  stocks  in  Massachusetts  cor- 
porations or  deposits  in  savings  banks,  or  wholly  exempted,  such 
as  mortgages  and  mortgage  bonds  and  state  and  municipal  bonds, 
the  income  tax  had  no  application;  and  similarly  with  the  in- 
come from  real  estate  and  from  intangible  personal  property  it 
had  no  concern. 

In  the  few  years  that  have  elapsed  since  the  income  tax  law 
was  enacted,  the  conditions  which  previously  prevailed  have 
been  largely  forgotten,  and  the  income  tax  is  looked  upon  by 
many  merely  as  one  of  the  numerous  pests  with  which  those 
who  live  in  the  present  times  are  afflicted;  but  if  the  taxpayers 
would  but  consider  the  evils  which  the  enactment  of  the  income 
tax  law  remedied,  the  income  tax  would  be  held  in  higher  es- 
teem, and  would,  it  is  believed,  be  better  understood.7 

Limitations  upon  the  Taxation  of  Incomes 
The  Forty-fourth  Amendment  to  the  constitution   of  this 

'  Those  who  have  forgotten  conditions  as  they  existed  in  Massachusetts  prior 
to  the  enactment  of  the  income  tax  act  should  study  the  present  situation  in 
Maine,  New  Hampshire  and  Vermont,  and  in  many  of  the  states  of  the  middle 
west,  in  which  the  constitution  requires  uniformity  in  taxation.  In  most  of  these 
states,  after  various  futile  attempts  to  assess  intangible  property  at  the  same 
rate  as  real  estate,  this  class  of  property  is  allowed  to  escape  taxation  altogether 
except  when  in  the  hands  of  those  who  are  too  honest  to  conceal  it  or  too  un- 
sophisticated to  know  how  to  do  so,  or  when  it  is  exposed  to  the  assessors  through 
its  appearance  in  the  probate  courts. 


Taxation  of  Incomes  433 

G.  L.  c.  62] 

commonwealth,  approved  and  ratified  by  the  people  in  Novem- 
ber, 1915,  is  phrased  in  the  following  language: 

"Full  power  and  authority  are  hereby  given  and  granted  to  the 
General  Court  to  impose  and  levy  a  tax  on  income  in  the  manner 
hereinafter  provided.  Such  tax  may  be  at  different  rates  upon  in- 
come derived  from  different  classes  of  property,  but  shall  be  levied 
at  a  uniform  rate  throughout  the  commonwealth  upon  incomes  de- 
rived from  the  same  class  of  property.  The  general  court  may  tax 
income  not  derived  from  property  at  a  lower  rate  than  income 
derived  from  property,  and  may  grant  reasonable  exemptions  and 
abatements.  Any  class  of  property  the  income  from  which  is  taxed 
under  the  provisions  of  this  article  may  be  exempted  from  the  im- 
position and  levying  of  proportional  and  reasonable  assessments, 
rates  and  taxes  as  at  present  authorized  by  the  constitution.  This 
article  shall  not  be  construed  to  limit  the  power  of  the  general  court 
to  impose  and  levy  reasonable  duties  and  excises." 

Although  the  income  tax  law  now  in  force  is  limited  in  its 
application  to  certain  classes  of  income  only,  and  the  real  pur- 
pose of  the  Forty-fourth  Amendment  was  to  authorize  the  taxa- 
tion of  the  classes  of  income  which  are  taxed  by  the  present  law, 
the  amendment  itself  is  not  so  limited,  but  authorizes  the  taxa- 
tion of  income  of  every  class  and  description  which  the  legisla- 
ture may  at  any  time  see  fit  to  tax. 

There  are,  however,  certain  limitations  upon  the  taxation  of 
incomes  under  the  amendment.  In  the  first  place,  there  is 
the  limitation  imposed  by  the  amendment  itself,  that  the  tax 
shall  be  levied  at  a  uniform  rate  throughout  the  commonwealth 
upon  incomes  derived  from  the  same  class  of  property,  which  pro- 
hibits a  graded  income  tax  such  as  is  imposed  by  the  federal  law, 
and  also  prohibits  income  taxes  in  force  in  certain  cities  and  towns 
only,  or  imposed  at  different  rates  in  different  cities  and  towns. 
Then  again,  the  adoption  of  the  amendment  did  not  in  any  way 
affect  the  limitations  of  the  federal  constitution,  or  give  the  state 
any  greater  powers  with  respect  to  income  taxes  than  it  already 
had  with  respect  to  property  taxes ;  and  the  state  cannot  tax  the 
income  of  federal  office  holders,1  or  interest  on  United  States 

1  Biscoe  v.  Tax  Commissioner,  236  Mass.  201   (1920)   and  see  also  supra,  Part 
I,  §28. 


3 


434  Taxation  in  Massachusetts 

[G.  L.  c.  62 

bonds,2  or  discriminate  in  its  income  taxes  against  non-residents 
or  against  interstate  commerce,4  or  impose  income  taxes  in  such 
an  arbitrary  and  unreasonable  manner  as  to  deprive  persons  of 
their  property  without  due  process  of  law.5 

Clearly  the  legislature  cannot  tax  that  as  income  which  is 
not  income.  The  requirement  of  proportionality  in  taxation  has 
not  been  repealed  except  so  far  as  to  allow  the  taxation  of  income, 
and  a  direct  tax  which  is  not  proportional  to  the  tax  on  property 
generally  cannot  be  sustained  as  an  income  tax  unless  it  is  in 
truth  a  tax  on  income.  But  the  word  "income"  in  the  Forty- 
fourth  Amendment  was  employed  to  express  a  comprehensive 
idea,  and  must  be  interpreted  as  including  any  item  which  by  any 
reasonable  understanding  can  fairly  be  regarded  as  income.  In- 
come may  be  derived  from  capital  invested  or  in  use,  from  labor, 
from  the  exercise  of  skill,  ingenuity  or  sound  judgment,  or  from 
a  combination  of  any  or  all  of  these  factors.  It  includes  gain, 
profit  or  revenue  of  every  description.6 

The  distinction  drawn  between  capital  and  income  for  the 
purposes  of  administering  trust  estates  is  not  necessarily  to  be 
followed  in  determining  what  is  income  for  purposes  of  taxation. 
"Income,"  like  most  other  words,  has  different  meanings  de- 
pendent upon  the  connection  in  which  it  is  used  and  the  result 
intended  to  be  accomplished.7  But  the  construction  put  upon  the 
Sixteenth  Amendment  to  the  federal  constitution  by  Congress 
and  the  federal  taxing  authorities  prior  to  the  adoption  of  the 
Forty-fourth  Amendment  in  this  commonwealth  is  important  as 
bearing  upon  what  was  understood  by  the  word  "income"  in  the 
latter  amendment,  for  the  federal  income  tax  law  of  1913  may  be 
presumed  to  have  been  more  or  less  familiar  to  the  members  of 
the   general   court   and   to   the   people   during   the   discussion 

28upra,  Part  I,  §27. 

3  Travis  v.  Yale  &  Towne  Mfg.  Co.,  252  U.  S.  60  (1920)  and  see  also  supra, 
Part  I,  §17. 

4  Supra,  Part  I,  §§  20-25  inc.  A  state  may,  however,  tax  income  derived 
from  interstate  commerce  at  the  same  rate  as  other  income.  United  States  Glue 
Co.  v.  Oak  Creek,  247  U.  S.  321  (1918)  ;  Shaffer  v.  Carter,  252  U.  S.  37,  57 
(1920)  ;  Underwood  Typewriter  Co.  v.  Chamberlain,  254  U.  S.  113  (1920)  ;  H.  P. 
Hood  &  Sons  v.  Commonwealth,  235  Mass.  572  (1920). 

bBupra,  Part  I,  §32.  Income  received  from  property  which  was  not  within 
the  jurisdiction  of  the  commonwealth  when  it  produced  the  income  cannot  be 
taxed.    Hart  v.  Tax  Commissioner,  Mass.  (1921). 

8  Tax  Commissioner  v.  Putnam,  227  Mass.  522  (1917). 

7  Tax  Commissioner  v.  Putnam,  227  Mass.  522,  533  (1917). 


Taxation  of  Incomes  435 

G.  L.  c.  62] 

accompanying  the  adoption  of  the  Forty-fourth  Amendment.8 
So  also  decisions  of  the  supreme  court  of  the  United  States  with 
respect  to  the  power  granted  Congress  by  the  Sixteenth  Amend- 
ment, though  rendered  after  the  adoption  of  the  Forty-fourth 
Amendment  in  this  commonwealth,  are  important,  though  not 
controlling,  for  they  involve  the  meaning  put  upon  the  same 
word  under  much  the  same  circumstances  by  that  learned  trib- 
unal.9 

The  very  purpose  of  the  Forty-fourth  Amendment  was  to 
authorize  the  taxation  of  certain  classes  of  property  upon  an 
income  basis  while  other  property  was  taxed  at  its  capital  value, 
and  to  dispense  with  the  requirement  of  proportionality  between 
taxes  levied  on  income  and  those  levied  on  capital  value. 
Nevertheless,  the  requirement  of  proportionality  is  not  re- 
pealed, and  taxes  on  income  cannot  be  used  either  openly 
or  covertly  as  a  means  of  bringing  about  disproportionate 
taxation.  It  is  not  to  be  supposed  that  the  requirement 
that  all  property  shall  share  in  the  burdens  of  government 
could  be  evaded  by  taxing  the  income  of  certain  arbitrarily  se- 
lected classes  of  property  at  such  a  rate  that  all  the  public  rev- 
enues were  thereby  raised,  and  other  property  thus  wholly  ex- 
empted from  its  share  of  the  public  burden.10  But  in  general, 
the  rate  at  which  income  taxes  shall  be  levied,  and  the  relation 
which  they  shall  bear  to  taxes  on  property  at  its  capital  value 
lies  wholly  in  the  discretion  of  the  legislature.11 

The  Forty-fourth  Amendment  provides  that  income  not  de- 
rived from  property  may  be  taxed  at  a  lower  rate  than  income 
derived  from  property;  and  it  was  generally  supposed  that  a 
distinction  was  intended  to  be  drawn  between  income  derived 
from  the  personal  efforts  of  a  taxpayer  and  that  arising  from 
his  ownership  of  property.  Nevertheless  it  has  been  held 
that,   as  the  right   to  labor  is  property,   income  received   as 

8  Tax  Commissioner  v.  Putnam,  227  Mass.  522,  528  (1917). 

•  Under  the  federal  income  tax  amendment  it  has  been  held  that  a  stock 
dividend  cannot  be  taxed  as  income,  Eisner  v.  Macomber,  232  U.  S.  189  (1920)  ; 
that  the  gain  derived  from  the  sale  of  capital  assets  may  be  taxed  as  income, 
Merchants'  Loan  &  Trust  Co.  v.  Smietanka,  255  U.  S.  509  (1921)  ;  but  that  if  the 
taxpayer  sells  property  at  less  than  he  paid  for  it,  but  for  more  than  it  was 
worth  when  the  income  tax  amendment  went  into  effect,  he  cannot  be  taxed  on  the 
transaction  as  one  producing  income,  Goodrich  v.  Edwards,  255  U.  S.  527   (1921). 

"Duffy  v.  Treasurer  &  Receiver  General,  234  Mass.  42,  52   (1919). 

"Knights   v.    Treasurer  &   Receiver  General,    237    Mass.   493    (1921). 


436  Taxation  in  Massachusetts 

[G.  L.  c.  62 

compensation  for  personal  services  is  income  from  property,  and 
may  be  taxed  at  a  higher  rate  than  income  arising  from  the  owner- 
ship of  property.12 

Interesting  questions  may  arise  when  it  is  sought  to  tax  in- 
come in  a  manner  not  permitted  by  the  Forty-fourth  Amend- 
ment but  which  would  have  been  constitutional  in  the  absence 
of  such  amendment.  Thus  it  is  generally  considered  that  a  tax  on 
the  income  of  a  business  is  an  excise,  and  not  a  property  tax,  and 
consequently  not  subject  to  the  requirement  of  proportionality, 
so  that  a  tax  on  the  income  derived  from  business  imposed  at  a 
uniform  rate  throughout  the  commonwealth  could  have  been 
constitutionally  levied  prior  to  the  adoption  of  the  Forty-fourth 
Amendment,  provided  the  business  was  not  one  of  those  which 
can  be  exercised  by  anyone  as  of  common  right,  without  gov- 
ernmental regulation.  It  has  been  held  that  an  excise  on  the 
enjoyment  of  a  corporate  franchise  may  be  constitutionally 
measured  by  income  although  imposed  in  such  a  way  as  not  to 
comply  with  the  Forty-fourth  Amendment,13  and  it  is  probable 
that  it  would  be  held  that  that  amendment  was  not  intended 
to  limit  any  existing  power  of  taxation. 

Taxation  of  Income  from  Certain  Intangibles 

Section  1.  income  of  the  classes  described  in  subsections  (a), 
(&),  (c)  and  (e)  received  by  any  inhabitant  of  the  commonwealth 
during  the  preceding  calendar  year,  shall  be  taxed  at  the  rate  of  six 
per  cent  per  annum. 

The  income  taxed  under  this  section  (with  the  exception  of 
dividends  received  from  unincorporated  associations)  is  exclu- 
sively income  from  the  forms  of  intangible  property  which  -were 
previously  taxable  at  their  capital  value  at  the  local  rate;  and 
income  from  real  estate  or  from  securities  of  the  classes  known 
as  "non-taxables"  is  not  taxed  or  in  any  way  affected  by  the 
statute. 

"Inhabitant"  means  legal  resident,  in  the  same  sense  in  which 
the  word  has  always  been  used  in  the  statutes  relating  to  taxa- 
tion.1   It  does  not  in  this  statute  apply  to  corporations,  domestic 

12  Rayner  v.  Commissioner  of  Taxation,  Mass.  (1921). 

13Eaton,  Crane  &  Pike  Co.  v.  Commonwealth,  237   Mass.   523    (1921). 
^eehan  v.  Tax  Commissioner,  237  Mass.   169    (1921).    As  to  the  principles 
of  law  determining  legal  residence,  see  supra,  page  221. 


Taxation  op  Incomes  437 

G.L.c.  62,  §1,  (a)] 

or  foreign,  except  when  holding  property  in  trust  for  an  individual 
inhabitant  of  the  commonwealth.  The  section  now  under  con- 
sideration is  also  qualified  by  section  twenty-five  by  which  it  is 
provided  that  returns  are  required  only  of  those  who  are  inhabi- 
tants of  this  commonwealth  at  some  time  between  January  1 
and  June  30  of  the  year  in  which  the  tax  is  assessed,  and  inferen- 
tially  that  no  other  person  is  obliged  to  pay  the  tax.  Conse- 
quently one  who  was  an  inhabitant  of  this  commonwealth  and  re- 
ceived income  in  part  of  a  year,  but  changed  his  domicile  to 
another  state  before  the  end  of  the  year,  is  not  subject  to  the 
tax  in  the  following  year  with  respect  to  such  income,  and  con- 
versely under  the  provisions  of  the  statute  one  who  became  an 
inhabitant  after  January  1,  and  before  June  30  in  any  year,  is 
subject  to  the  tax,  although  it  relates  to  income  received  while 
the  person  assessed  was  not  an  inhabitant  of  this  commonwealth. 
The  latter  provision  was  however  held  to  be  beyond  the  constitu- 
tional powers  of  the  legislature.2 

Women,  whether  married  or  single,  who  are  inhabitants  of 
this  commonwealth,  having  income  of  their  own  of  the  taxable 
classes,  are  taxable  under  this  law;  and  the  same  is  true  of 
minors.  The  domicile  of  a  married  woman,  or  of  a  minor,  is  of 
course  ordinarily  that  of  the  husband  or  father.  A  person  acting 
in  a  fiduciary  capacity  for  the  benefit  of  an  inhabitant  of  this 
commonwealth  or  for  an  unborn  or  unascertained  person  is  bound 
to  file  a  return  and  is  taxable,  even  if  he  is  not  an  inhabitant  of 
this  commonwealth,  if  he  derived  his  appointment  from  a  Massa- 
chusetts court. 

Income  is  received  within  the  meaning  of  the  statute  not 
only  when  it  is  paid  in  cash  or  by  check,  or  by  goods  or  services, 
but  also  when  it  is  credited  by  a  bank  or  a  broker  or  agent,  or 
upon  a  running  account.  If,  however,  income  is  not  paid  in  cash 
or  the  equivalent  of  cash,  the  taxpayer  is  taxable  only  upon  the 
fair  cash  value  of  what  he  received,  whether  it  be  foreign  money 
or  the  note  of  a  person  whose  ability  to  pay  is  open  to  question, 
or  property  of  any  other  class. 

Interest  from  Bonds,  Notes  and  Other  Debts 
(a)  Interest  from  bonds,  notes,  money  at  interest  and  all  debts 
due  the  person  to  be  taxed,  except  from : 

2  Hart  v.  Tax  Commissioner,  Mass.  (1921). 


438  Taxation  in  Massachusetts 

[G.  L.  c.  62,  §  1,  (a) 

First,  Deposits  in  any  savings  bank  chartered  by  the  common- 
wealth or  in  the  Massachusetts  Hospital  Life  Insurance  Company,  or 
such  of  the  deposits  in  the  savings  department  of  any  trust  company 
so  chartered  as  do  not  exceed  in  amount  the  limits  imposed  upon 
deposits  in  savings  banks  by  section  thirty-one  of  chapter  one  hundred 
and  sixty-eight,  and  deposits  in  any  bank  situated  in  the  state  of 
New  Hampshire,  so  long  as  the  provisions  of  chapter  one  hundred  and 
eighty-nine  of  the  Public  Acts  of  nineteen  hundred  and  seventeen  of 
that  state  remain  in  force,  and  deposits  in  any  bank  in  any  other  state 
which  exempts  from  taxation  to  its  inhabitants  similar  deposits,  and 
interest  and  dividends  thereon,  owned  by  such  inhabitants  in  banks  in 
this  commonwealth. 

Second,  Bonds,  notes  and  certificates  of  indebtedness  of  the  United 
States  and  such  bonds,  notes  and  certificates  of  indebtedness  of  the 
commonwealth  and  of  political  subdivisions  thereof  as  are  exempted 
from  taxation  by  clause  twenty-fifth  of  section  five  of  chapter  fifty- 
nine. 

Third,  Loans  secured  exclusively  by  mortgage  of  real  estate,  tax- 
able as  real  estate,  situated  in  the  commonwealth,  to  an  amount  not 
exceeding  the  assessed  value  of  the  mortgaged  real  estate  less  the 
amount  of  all  prior  mortgages. 

Fourth,  Loans  made  in  the  course  of  business  by  persons  loaning 
money  as  a  business  upon  the  pawn  or  pledge  of  tangible  personal 
property. 

This  subsection  takes  the  place  of  the  tax  on  capital  value 
upon  "money  at  interest  and  other  debts  due"  and  "public  stocks 
and  securities  .  .  .  bonds  of  railroads  and  street  railways"  which 
was  in  force  for  so  many  years.1  When  the  taxable  interest  of  one 
person  is  not  in  excess  of  five  dollars  (as  is  not  unusual  in  the 
case  of  a  depositor  in  a  bank  whose  daily  balance  is  small)  and 
his  income  from  all  sources  is  not  over  two  thousand  dollars, 
the  income  tax  division  does  not  insist  upon  the  filing  of  a  re- 
turn or  the  payment  of  a  tax. 

Interest  is  taxable  under  this  section,  and  not  under  section 
five  as  business  income,  although  the  business  of  the  taxpayer 
is  to  loan  money  at  interest,  the  only  exception  being  in  the  case 
of  a  pawnbroker.  In  the  case  of  an  open  account  between  two 
persons  upon  which  there  have  been  debits  and  credits  of  interest, 

1  G.  L.  c.  59,  §4,  cl.  2,  supra,  page  191. 


Taxation  of  Incomes  439 

G.L.  c.  62,  §1,  (a)] 

the  net  credit  should  be  returned  for  taxation,  if  the  account 
has  remained  open  during  the  whole  of  the  period  over  which 
the  computation  of  net  interest  is  made.  Interest  is  deemed  to 
be  received  when  credited ;  discount  on  a  note  is  of  course  taxable 
as  interest,  and  the  same  is  true  of  accrued  interest  included  in 
the  price  received  from  the  sale  of  a  bond. 

Deposits  in  Banks 

Under  the  original  statute,  deposits  in  savings  banks  chartered 
by  this  commonwealth  and  in  the  savings  departments  of  trust 
companies  so  chartered,  within  the  limits  imposed  upon  savings 
banks,  were  exempted,  because  such  deposits  are  reached  for 
taxation  by  a  tax  on  the  franchise  of  the  banks  and  had  long 
been  exempt  from  the  direct  property  tax.2  Subsequently  the 
exemption  was  extended  to  deposits  in  savings  banks  in  such 
other  states  as  grant  a  like  exemption  to  deposits  in  Massachu- 
setts savings  banks  owned  by  their  own  inhabitants.3 

It  has  been  ruled  that  in  the  case  of  a  deposit  in  the  savings 
department  of  a  trust  company  which  exceeds  in  amount  the 
limits  imposed  upon  deposits  in  savings  banks,  the  depositor  is 
taxable  upon  the  entire  interest  and  not  merely  upon  so  much  as 
is  derived  from  the  portion  of  the  deposit  in  excess  of  the  savings 
bank  limit.  The  soundness  of  this  ruling  has  been  questioned  but 
it  has  not  been  contested  in  the  courts  and  it  seems  clearly  sound 
if  this  statute  and  the  statute  providing  for  the  taxation  of 
the  savings  departments  of  trust  companies  are  to  be  considered 
complementary.4 

Interest  on  deposits  in  the  Postal  Savings  Banks  is  exempt 
because  a  state  is  not  allowed  to  tax  such  income.  Interest  on 
money  on  deposit  in  the  savings  departments  of  national  banks, 
is,  however,  taxable.  Income  received  from  shares  in  Massachu- 
setts cooperative  banks  is  not  taxable,  either  before  or  after  the 
maturity  of  the  shares.5  Interest  received  from  deposits  in  any 
banks,  except  savings  banks  and  savings  departments  of  trust 
companies,  is  of  course  subject  to  taxation. 

2G.  L.  c.  63,  §15,  infra,  page  518;  G.  L.  c.  59,  §5,  cl.  28,  supra,  page  214. 

8  St.  1918,  c.  7;  St.  1918,  c.  120.  The  states  whose  savings  banks  are  included 
in  the  exemption  are  (besides  New  Hampshire)  Maine,  Vermont,  Connecticut  and 
New  York. 

4G.  L.  c.  63,  §11,  infra,  page  515. 

6  The  exemption  also  extends  to  co-operative  banks  chartered  in  Maine,  Ver- 
mont, New  Hampshire,  Connecticut  and  New  York. 


440  Taxation  in  Massachusetts 

[G.  L.  c.  62,  §  1,  (a) 

United  States,  State  and  Municipal  Bonds 

The  exemption  of  interest  received  on  United  States  bonds  is 
based  upon  the  lack  of  power  of  a  state  to  tax  the  instrumental- 
ities of  the  federal  government6  and  is  not  confined  to  the  narrow 
limits  set  forth  in  the  statute.  It  includes  certificates  of  in- 
debtedness and  all  other  forms  of  obligations  of  the  United 
States,  and  extends  to  the  obligations  of  all  bodies  politic  and 
corporate  established  by  Congress  which  Congress  has  expressly 
declared  should  be  exempt  from  taxation,  such  as  the  bonds  of 
territories  and  insular  possessions  and  of  municipal  corporations 
located  therein,  and  bonds  of  such  corporations  as  the  Federal 
Land  Banks  and  the  War  Finance  Corporation  and  federal  farm 
loan  bonds. 

The  state  and  municipal  securities  which  are  exempt  from 
taxation  under  the  terms  of  the  statute  are  bonds  and  notes 
issued  by  this  commonwealth  since  January  1,  1906  and  bonds 
and  notes  of  cities,  towns  and  districts  within  the  commonwealth 
issued  since  May  1,  1908,  stating  on  their  face  that  they  are  tax- 
exempt.  The  bonds  and  notes  of  other  states,  or  of  cities  and 
towns  in  other  states,  are  taxable  even  if  they  bear  on  their  face 
the  statement  that  they  are  tax-exempt. 

Interest  on  Mortgages 

The  exemption  of  interest  received  on  loans  secured  by  mort- 
gage of  real  estate  is  a  continuation  of  the  practice  which  pre- 
vailed under  the  earlier  statutes,  originating  in  1881,  which  was 
designed  for  the  purpose  of  avoiding  the  double  taxation  of  the 
same  property  which  would  result  if  mortgaged  real  estate  were 
taxed  at  its  full  value,  and  the  mortgage  thereon  were  also  taxed.7 
The  exemption  is  therefore  strictly  limited  to  mortgages  of  tax- 
able real  estate;  and  interest  on  a  mortgage  upon  a  church  or 
other  exempt  property  is  taxable.  If  the  amount  of  the  mort- 
gage is  greater  than  the  assessed  value  of  the  land,  the  interest 
on  the  excess  is  taxable. 

Although  the  same  element  of  double  taxation  may  be  pres- 
ent, the  exemption  does  not  extend  to  mortgages  oi  tangible 

"Supra,  Part  I,  §27. 

7  G.  L.  c.  59,  §12,  supra,  page  230.    y 


Taxation  of  Incomes  441 

G.L.c.  62,  §1,  (a),  (b)] 

personal  property  situated  within  the  commonwealth,  or  of  prop- 
erty, real  or  personal,  situated  outside  the  commonwealth.  There 
is  no  provision  for  apportionment  in  case  the  mortgage  includes 
real  estate  within  the  commonwealth  and  other  property  as  well, 
and  in  such  case  the  entire  interest  is  taxable.8  There  is  no 
requirement  that  the  obligation  secured  by  a  mortgage  be  held 
by  one  individual,  and  the  interest  on  an  entire  issue  of  bonds 
secured  by  a  mortgage,  or  on  a  set  of  "parti-mortgage  receipts" 
is  exempt  whenever  a  note  held  by  one  individual  secured  by  a 
like  mortgage  would  be  exempt.9  It  is  not  always  easy  for  a 
private  investor  to  determine  what  bonds  are  tax-exempt,  and 
the  income  tax  division  has  prepared  a  list  of  mortgage  bonds 
which  it  has  investigated,  with  a  statement  of  those  which  it 
considers  taxable  and  those  which  it  considers  tax-exempt. 

Pawnbrokers 

Under  the  original  income  tax  act,  it  was  held  that  interest 
received  by  a  pawnbroker  in  the  course  of  his  business  was  tax- 
able at  six  per  cent  as  "money  at  interest"  rather  than  at  one 
and  one-half  per  cent  as  income  from  business.10  It  was  how- 
ever almost  immediately  provided  by  the  legislature  that  inter- 
est received  by  persons  loaning  money  as  a  business  upon  the 
pawn  or  pledge  of  tangible  personal  property  should  be  taxed 
upon  such  interest  as  income  from  a  business  and  not  as  money 
at  interest.11 

Dividends  on  Stock  in  Foreign  Corporations 

(h)  Dividends,  other  than  stock  dividends  paid  in  new  stock  of 
the  company  issuing  the  same,  on  shares  in  all  corporations  and  joint 
stock  companies  organized  under  the  laws  of  any  state  or  nation  other 
than  this  commonwealth,  except  banks  the  shares  of  which  are  sub- 
ject to  taxation  under  section  one  of  chapter  sixty-three  and  except 
such  foreign  corporations  as  are  subject  to  a  tax  upon  their  franchises 
payable  to  the  commonwealth  under  section  fifty-eight  of  chapter 
sixty-three. 

8  See  Brooks  v.  West  Springfield,  193  Mass.  190  (1906);  Sweetser  v.  Man- 
ning, 200  Mass.  378  (1909). 

'See  Knight  v.  Boston,  159  Mass.  551   (1893). 
"Goldman  v.  Tax  Commissioner,  230  Mass.  554  (1918). 
11  St.  1918,  c.  150. 


442  Taxation  in  Massachusetts 

[G.  L.  c.  62,  §  1,  (6) 

This  provision  of  the  income  tax  law  was  intended  to  be  com- 
plementary to  the  statute  under  which  corporations  were  taxed, 
and  to  reach  stock  held  by  residents  of  Massachusetts  in  all  cor- 
porations except  those  which  were  themselves  taxed  on  their 
shares  or  franchises  by  the  corporation  tax  act  then  in  force. 
Under  the  present  system  of  taxing  corporations,  foreign  corpor- 
ations doing  business  in  this  commonwealth  are  taxed  on  their 
franchises,  and  their  stock  is  taxable  with  respect  to  its  income 
when  in  the  hands  of  residents  of  Massachusetts,  although  an 
allowance  is  made  to  prevent  double  taxation,  so  that  the  statutes 
are  still  in  a  sense  complementary.1  Dividends  on  shares  in  all 
corporations  and  joint  stock  companies  organized  under  the  laws 
of  any  state  or  nation  other  than  Massachusetts  and  received 
by  a  resident  of  this  commonwealth  are  taxable  under  this  pro- 
vision of  the  income  tax  act,  except  dividends  on  shares  in  na- 
tional banks  and  on  certain  public  service  companies  which  pay 
a  franchise  tax  to  the  state.2  So-called  dividends  upon  insurance 
policies  are  however  not  taxable,  as  they  are  merely  the  return  of 
over-payments  of  premiums.3 

It  is  not  necessary  that  a  dividend,  to  be  taxable,  be  paid  in 
cash.  Dividends  paid  in  property,  in  scrip,  in  Liberty  Bonds 
or  in  stock  of  other  corporations  are  taxable  at  the  fair  market 
value  of  the  property  when  received.4  The  taxability  of  dividends 
paid  in  the  stock  of  the  corporation  which  issued  them  raised 
one  of  the  most  notable  controversies  in  the  history  of  the  law 
of  taxation.  Stock  dividends  were  held  to  be  taxable  as  income 
under  the  Massachusetts  income  tax  act;5  but  under  the  federal 
income  tax  acts  it  was  not  only  held  that  a  stock  dividend  was 

1  G.  L.  c.  63,  §43,  infra,  page  567. 

2  There  are  at  present  only  three  such  companies,  namely,  the  American  Tel. 
&  Tel.  Co. ;  the  New  England  Tel.  &  Tel.  Co.,  and  the  Western  Union  Tel.  Co. 

3  See  Orleans  Board  of  Assessors  v.  New  York  Life  Insurance  Co.,  216  U.  S. 
517   (1910). 

4  When  a  sum  of  money  is  paid  by  a  corporation  in  settlement  of  a  claim  for 
accrued  dividends,  the  sum  so  paid  is  taxable  as  a  dividend.  Wilder  v.  Tax  Com- 
missioner, 234  Mass.  470  (1919). 

6  Tax  Commissioner  v.  Putnam,  227  Mass.  552  (1917).  In  that  case  it  was 
held  that  the  stock  dividend  was  taxable  although  declared  out  of  earnings  that 
had  been  invested  in  permanent  additions  to  the  plant  of  the  corporation 
prior  to  the  adoption  of  the  Forty-fourth  Amendment.  In  Tilton  v.  Tax 
Commissioner,  Mass.  (1921),   it  was  held  that  a   stock   dividend  was 

income  whether  derived  from  an  increase  in  the  market  value  of  capital  assets 
or  from  accumulated  profits. 


Taxation  op  Incomes  443 

G.L.c.62,§l,  (o)] 

not  taxable  under  the  general  provisions  of  law,6  but  that  a  stock 
dividend  could  not  constitutionally  be  taxed  by  Congress,  because 
it  was  not  income.7  While  this  decision  did  not  affect  the  inter- 
pretation of  the  constitution  and  laws  of  Massachusetts,  a  statute 
was  shortly  afterward  enacted  in  Massachusetts  exempting  stock 
dividends  from  taxation.8 

Difficult  questions  frequently  arise  in  the  case  of  small  cor- 
porations when  all  or  a  greater  part  of  the  stock  is  held  by  two 
or  three  men  who  are  also  the  officers  of  the  corporation  and  have 
active  control  of  its  business.  Apart  from  the  tax  laws  it  is 
nobody's  affair  but  their  own  how  the  profits  are  divided,  and 
whether  in  the  form  of  salaries  or  dividends.  If  however  the 
division  is  in  proportion  to  the  holdings  of  stock  rather  than 
to  the  services  performed,  and  the  amount  received  is  greatly 
in  excess  of  reasonable  compensation  for  services,  the  money 
distributed  will  be  taxed  as  a  dividend,  even  if  it  is  treated  as 
a  salary  by  the  corporation.9 

The  taxability  of  a  dividend  depends  upon  the  state  of  things 
existing  at  the  time  that  it  is  received  by  the  stockholder,  either 
by  being  paid  to  him  or  to  his  order  in  cash  or  credited  to  him 
on  the  books  of  his  banker  or  broker.  It  is  immaterial  when  the 
dividend  was  earned.  A  stockholder  has  no  individual  interest 
in  the  profits  of  a  corporation  until  a  dividend  is  declared,  and  he 
can  be  taxed  on  a  dividend  as  income  at  the  time  he  received  it, 
although  it  was  earned  by  the  corporation  at  a  time  when  the 
state  had  no  power  to  levy  an  income  tax. 


10 


Unincorporated  Associations 

(c)  Dividends,  other  than  stock  dividends  paid  in  new  stock  of 
the  partnership,  association  or  trust  issuing  the  same,  on  shares  in 
partnerships,  associations  or  trusts,  the  beneficial  interest  in  which  is 
represented  by  transferable  shares,  except  dividends  on  shares  of  the 
following : 

First,  Partnerships,  associations  or  trusts,  which  file  with  the  com- 
missioner the  agreement  hereinafter  provided  for,  and  the  property 

"Towne  v.  Eisner,  245  U.  S.  418   (1918). 
'Macomber  v.  Eisner,  252  U.  S.  189  (1920). 
8  St.  1920,  c.  352. 

•  See  United  States  v.  Philadelphia  Knitting  Mills  Co.,  C.  C.  A.,  Third  Circuit, 
March,  1921. 

10  Tax  Commissioner  v.  Putnam,  227  Mass.  522  (1917). 


444  Taxation  in  Massachusetts 

[G.  L.  c.  62,  §  1,  (c)   (d)  (e) 

of  which  consists  exclusively  of  one  or  more  of  the  following 
specified  kinds  of  property,  to  wit :  real  estate  wherever  situated  and 
supplies  therefor  and  receipts  therefrom ;  stocks  of  corporations  tax- 
able under  section  fifty-eight  of  chapter  sixty-three,  bonds,  notes, 
loans  secured  by  mortgage  of  real  estate,  and  certificates  of  indebted- 
ness, the  income  of  which  is  exempt  from  taxation  under  this  section ; 
property  the  income  of  which,  if  any,  would  be  taxable  under  this 
section  if  owned  by  an  inhabitant  of  the  commonwealth ;  shares  in 
partnerships,  associations  or  trusts,  dividends  on  which  are  exempt 
from  taxation  under  this  section. 

Second,  Partnerships,  associations  or  trusts,  the  beneficial  interest 
in  which  is  represented  by  transferable  shares,  which  file  such  agree- 
ment and  furnish  satisfactory  proof  to  the  commissioner  that  two 
thirds,  at  least,  of  their  taxable  property  is  taxed  within  the  common- 
wealth and  that  the  remainder,  if  taxable,  is  taxed  where  situated. 

(d)  Partnerships,  associations  or  trusts,  the  dividends  on  shares 
of  which  are  exempt  from  taxation  under  this  section,  shall  pay  to 
the  commissioner  annually  a  tax  of  six  per  cent  of  the  income  derived 
from  their  property,  so  far  as  such  income  would  be  taxable  under  this 
section  if  received  by  an  inhabitant  of  the  commonwealth. 

(e)  Dividends  on  shares  of  any  partnership,  association  or  trust, 
of  the  classes  designated  in  paragraphs  first  and  second  of  subsection 
(c),  shall  be  subject  to  taxation  under  this  section  unless  the  trustees 
or  managers  thereof  file  with  the  commissioner,  in  such  form  as  he 
determines,  its  agreement  to  pay  to  the  commonwealth  annually  the 
tax  imposed  by  subsection  (d)  and  any  tax  imposed  by  section  five. 
In  case  of  any  breach  of  the  terms  of  any  such  agreement,  the  same 
may  be  enforced  by  information  in  equity  brought  by  the  attorney 
general  at  the  relation  of  the  commissioner  in  the  supreme  judicial 
court  for  Suffolk  county.  This  remedy  shall  be  in  addition  to  all 
other  means  of  collection  provided  by  this  chapter,  and  to  the  pen- 
alties hereinafter  imposed. 

Prior  to  the  enactment  of  this  statute,  the  excess,  if  any,  of 
the  total  value  of  the  shares  in  an  unincorporated  association 
over  the  value  of  the  property  of  the  association  escaped  all  tax- 
ation.1 This  portion  of  the  income  tax  act  constitutes  an  at- 
tempt to  reach  such  property,  but  without  inflicting  double  tax- 
ation.    Under  its  provisions  "real  estate  trusts"  are  not  taxed 

lHoadley  v.  Essex  County  Commissioners,  105  Mass.  519    (1870). 


Taxation  op  Incomes  445 

G.L.c.62,  §1,  (e)] 

on  their  income  at  all,  and  "holding  companies"  are  not  taxed 
unless  the  securities  which  they  hold  are  taxable  under  this  act, 
in  which  case  the  income  from  the  securities  is  taxed  to  the 
"company"  and  the  dividends  are  not  taxed  to  the  shareholder. 
An  unincorporated  association  doing  a  manufacturing  or  mer- 
cantile business  (or  any  other  business  which  it  is  capable  of 
doing)  principally  within  this  commonwealth  (as  evidenced  by 
the  location  of  two  thirds  of  its  taxable  property)  is  taxable  upon 
its  business  income  like  any  other  partnership  at  one  and  a  half 
per  cent,2  and  an  association  doing  business  principally  without 
the  commonwealth  is  not  taxed  on  its  business  income  but  the 
shareholders  are  taxed  on  their  dividends  at  the  six  per  cent 
rate  just  as  if  it  were  a  foreign  corporation. 

It  is  of  great  importance  to  the  shareholders  in  one  of  these 
associations  which  is  entitled  to  pay  the  tax  itself  and  receive 
all  the  exemptions  and  deductions  of  an  individual  citizen  that 
it  file  the  agreement  provided  for  in  subsection  (e) ;  otherwise 
its  entire  income  from  all  sources  derived  is  taxable  at  six  per 
cent  in  the  hands  of  those  of  its  shareholders  who  are  inhabitants 
of  this  commonwealth,  so  far  as  the  same  is  distributed.  The 
agreement,  to  be  effective  with  respect  to  the  dividends  paid 
in  any  year,  must  be  filed  not  later  than  the  first  day  of  February 
in  the  following  year. 

An  association  which  has  filed  the  agreement  in  accordance 
with  law  is  taxable  only  when  an  individual  would  be  taxable 
under  like  circumstances.  It  is  not  taxable  for  the  rent  of  real 
estate,  or  for  royalties  from  a  mine,  or  for  the  profit  upon  an 
isolated  sale  of  real  estate  or  other  tangible  capital  asset,  or  for 
interest  and  dividends  which  would  not  be  taxable  if  received  by 
an  individual  inhabitant  of  the  commonwealth.  It  is  taxable, 
like  an  individual,  at  one  and  one  half  per  cent  upon  the  net 
profits  of  a  business  carried  on  by  it,  at  three  per  cent  upon  the 
excess  of  the  gains  over  the  losses  from  the  sale  of  intangible 
property,  and  at  six  per  cent  upon  such  interest  and  dividends 
as  would  be  taxable  if  received  by  an  individual  inhabitant.  It 
may  claim  a  single  exemption  of  $2000  from  its  business  income. 
It  can  claim  no  deduction  on  account  of  the  individual  share- 
holders, and  must  pay  its  tax  in  full  without  regard  to  the 
proportion    of    shareholders  who   are   not   inhabitants  of  this 

2 Under  G.  L.  c.  62,  §5  (d)  infra,  page  457. 


446  Taxation  in  Massachusetts 

[G.  L.  c.  62,  §  1,  (e)   (f)   (g) 

commonwealth.  It  may  claim  a  deduction  from  business  income 
on  account  of  salaries  paid  to  officers  and  employees,  even  though 
such  officers  and  employees  are  also  shareholders. 

An  association  is  entitled  to  file  the  agreement  as  an  owner 
of  real  estate  even  although  the  real  estate  which  it  controls  is 
not  owned  by  it  in  fee,  provided  its  interest  in  such  real  estate 
is  as  high  as  a  lease  for  years. 

An  association  which  has  filed  the  agreement  must  make  a 
return  each  year,  even  if  it  has  received  no  income.  An  associ- 
ation which  has  not  filed  the  agreement  need  make  no  return 
of  income,  but  it  must  file  a  return  in  the  same  manner  as  an 
individual  or  a  corporation,  giving  the  names  of  employees,  stock- 
holders and  bondholders,  who  are  inhabitants  of  this  common- 
wealth, to  whom  it  has  made  payments  during  the  year,  in  accord- 
ance with  the  provisions  of  section  thirty-three. 

Securities  Held  in  Pledge  or  on  Margin 

(/)  For  the  purposes  of  this  chapter  any  securities  of  the  classes 
designated  in  this  section,  held  in  pledge,  or  on  margin  or  otherwise, 
by  an  agent  or  broker  as  security  for  a  debt  of  his  principal,  whether 
standing  in  the  name  of  the  principal  or  any  other  person,  shall  be 
deemed  the  property  of  the  principal,  and  the  income  arising  there- 
from shall  be  included  in  the  total  income  of  the  principal  under  this 
section. 

Under  earlier  decisions  it  had  been  held  that  stocks  held  by 
a  broker  in  pledge  or  on  margin  were  taxable  to  the  broker.1 
These  decisions  were  contrary  to  the  weight  of  authority  in  other 
states  and  were  extremely  unsatisfactory  to  the  brokers,  and  the 
effect  of  the  decisions  was  modified  by  the  income  tax  act  for  the 
purposes  of  that  tax. 

Distribution  of  Capital 

(g)  No  distribution  of  capital,  whether  in  liquidation  or  other- 
wise, shall  be  taxable  as  income  under  this  section;  but  accumulated 
profits  shall  not  be  regarded  as  capital  under  this  provision. 

Difficulties  sometimes  arise  in  determining  how  far  a  dividend 
constitute^  a  distribution  of  capital;   and  the  director  of  the 

'Chase  v.  Boston,  180  Mass.  458  (1902). 


Taxation  op  Incomes  447 

G.L.c.62,§2,  (a)   (&)] 

income  tax  division  requires  that  dividends  claimed  to  be  a  dis- 
tribution of  capital  be  set  forth  in  the  return  so  that  the  facts 
in  relation  thereto  may  be  verified  by  the  commissioner.  Divi- 
dends in  reduction  of  capital  and  dividends  in  liquidation  of  a 
corporation  the  capital  of  which  has  been  impaired  are  clearly 
not  taxable;  but  dividends  of  a  corporation  even  in  liquidation 
are  taxable  (provided  ordinary  dividends  of  such  corporation  are 
taxable)  so  far  as  they  represent  a  division  of  assets  in  excess  of 
the  capital  and  paid-in  surplus.  As  a  distribution  of  accumulated 
earnings  they  are  taxable  even  if  the  earnings  were  accumulated 
before  the  income  tax  law  went  into  effect  and  were  invested  in 
the  acquisition  of  permanent  capital  assets.1 

Interest  Deduction 

Section  2.  (As  amended  by  St.  1921,  Chapter  265.)  From  the 
income  taxable  under  the  preceding  section,  the  taxpayer  may,  under 
the  conditions  prescribed  in  this  section  and  section  seven,  receive  a 
deduction  on  account  of  interest  paid  by  him  during  the  year  on  debts 
of  the  following  classes : 

(a)  Debts,  except  those  secured  by  mortgage  or  pledge  of  real 
estate  or  tangible  personal  property,  owed  by  persons  engaged  in  the 
business  of  buying,  selling,  or  otherwise  dealing  in  intangible  personal 
property,  provided  that  such  business,  if  it  includes  other  classes  of 
dealings,  does  not  include  buying,  selling,  improving  or  otherwise 
dealing  in  or  with  real  estate  or  buying,  selling,  manufacturing  or 
otherwise  dealing  in  or  with  tangible  personal  property  other  than 
gold'  bullion. 

(&)  Debts  owed  by  other  persons,  except  debts  secured  by  such 
mortgage  or  pledge  and  debts  on  account  of  which  the  taxpayer  is 
entitled  to  claim  a  deduction  under  sections  five  and  six. 

Said  deduction  shall  be  allowed,  in  respect  of  interest  on  any  debt 
belonging  to  class  (&)  above  enumerated  arising  from  loans  or  open 
accounts  directly  or  indirectly  secured  by  intangible  personal  prop- 
erty, only  to  an  amount  not  exceeding  eighty  per  cent  of  the  income 
returned  by  the  taxpayer  for  taxation  under  section  one  on  account 

aTax  Commissioner  v.  Putnam,  227  Mass.  522    (1917).     See  also  Moore  v. 
Tax  Commissioner,  237  Mass.  574  (1921)  holding  that,  upon  the  liquidation  of  a 
corporation,  accumulated  profits  used  as  capital  but  not  capitalized  by  the  issu- 
ance of  a  stock  dividend  or  absorption  in  permanent  works  are  taxable  as  income 
-  when  distributed  to  the  shareholders. 


448  Taxation  in  Massachusetts 

[G.  L.  c.  62,  §§  2,  3,  4 

of  intangible  personal  property  which  secured  such  loans  or  open 
accounts. 

Persons  described  in  paragraph  (a)  of  this  section  may,  if  the 
deductions  allowed  by  subsections  (a)',  (&),  (c),  (d),  (e)  and  (/)  of 
section  six  exceed  the  total  income  taxable  under  subsections  (&)  and 
(c)  of  section  five,  deduct  from  their  taxable  interest  and  dividends, 
after  deducting  the  aforesaid  interest  deduction,  an  amount  of  such 
excess  which  bears  the  same  proportion  to  the  total  excess  as  their 
income  taxable  under  section  one  bears  to  their  total  net  income  as 
determined  under  section  three. 

Section  3.  The  deduction  to  be  allowed  under  the  preceding 
section  shall  be  determined  in  the  following  manner : 

A  taxpayer  claiming  the  benefit  thereof  shall  file  with  the  com- 
missioner or  the  income  tax  assessor  of  his  district  a  return,  in  such 
form  as  the  commissioner  prescribes,  of  his  entire  income  from  all 
sources,  together  with  such  other  information  as  said  commissioner 
deems  necessary  for  the  determination  of  the  amount  of  this  deduc- 
tion. The  commissioner  may,  in  lieu  of  such  return,  accept  a  sworn 
duplicate  of  the  annual  return  of  income  made  under  the  federal  in- 
come tax  law.  He  may  also,  in  any  case  where  he  deems  it  necessary, 
require  the  taxpayer  to  file  such  a  sworn  duplicate. 

From  said  return  and  information  the  commissioner  or  the  income 
tax  assessor  shall  determine  the  amount  of  interest  paid  during  the 
year  by  the  taxpayer  on  debts  of  class  (a)  or  (&)  enumerated  in  the 
preceding  section,  for  which  deduction  is  authorized  by  said  section, 
which  interest,  for  the  purposes  of  this  section,  shall  be  called  the  net 
interest.  He  shall  also  determine  the  total  net  income  of  the  tax- 
payer, exclusive  of  income  taxable  under  section  five,  as  such  total  net 
income  would  be  if  no  deduction  were  made  for  interest  paid  during 
the  year.  The  taxpayer  may  deduct  from  his  income  taxable  under 
section  one  an  amount  of  interest  paid  by  him  during  the  year  which 
shall  bear  the  same  proportion  to  the  net  interest  paid  as  his  income 
taxable  under  section  one  bears  to  his  total  net  income  as  above  de- 
termined. 

Section  4.  A  partnership,  association  or  trust,  the  beneficial  in- 
terest in  which  is  represented  by  transferable  shares,  paying  to  the 
commonwealth  a  tax  upon  income  subject  to  taxation  under  section 
one,  as  provided  in  subsection  (d)  thereof,  may  receive  the  deduction 
authorized  by  section  two  on  the  same  terms  as  an  individual  inhabi- 
tant. 


Taxation  of  Incomes  449 

G.  L.  c.  62,  §  4] 

The  foregoing  sections  have  seemed  to  many  to  be  unneces- 
sarily complicated  and  confusing,  and  require  some  knowledge 
of  the  object  sought  to  be  attained  to  be  readily  understood. 
The  Massachusetts  income  tax,  like  the  federal  income  tax, 
is  intended  to  be  a  tax  upon  net  income  rather  than  upon  gross 
receipts;  but  since  the  Massachusetts  income  tax  is,  unlike  the 
federal  income  tax,  a  tax  upon  certain  specified  classes  of  income 
only  and  not  upon  the  entire  income  of  the  taxpayer,  the  tax- 
payer is  obviously  not  entitled  to  a  deduction  except  on  account 
of  expenses  incurred  in  connection  with  the  classes  of  income 
which  are  taxed. 

Income  from  taxable  intangible  property  is  generally  wholly 
or  almost  wholly  net.  The  expenses  of  caring  for  the  property 
and  collecting  the  income,  such  as  the  rent  of  a  safe  deposit 
vault  or  even  the  employment  of  a  confidential  clerk  or  secretary, 
are  not  sufficiently  large  in  proportion  to  the  income  to  be  worthy 
of  a  special  provision  for  deduction  except  in  the  case  of  trust 
property,  in  which  case  expenses  of  administration  properly 
chargeable  to  income  are  allowed  to  be  deducted.  Federal  taxes 
are  not  deducted  because  the  right  of  the  state  to  tax  its  own 
citizens  is  primary.  The  only  deduction  to  which  an  owner 
of  intangible  property  is  fairly  entitled  is  interest  paid  by  him 
on  a  loan  secured  by  property  the  income  of  which  is  taxable 
under  the  act.  In  the  original  draft  of  the  income  tax  act  it  was 
provided  that  there  should  be  a  deduction  for  interest  so  paid 
and  that  the  owner  of  taxable  intangibles  pledged  as  security 
for  a  loan  should  be  taxable  only  on  the  net  income  therefrom, 
but  it  was  deemed  to  be  impossible  to  apply  such  a  rule  in  many 
instances,  and  to  meet  the  common  case  of  loans  secured  by  a 
shifting  mass  of  collateral,  partly  taxable  and  partly  non-taxable, 
where  it  would  be  impossible  to  determine  what  proportion  of 
the  interest  was  attributable  to  the  portion  of  the  loan  secured 
by  taxable  securities,  the  rather  complicated  provisions  of  this 
section  were  adopted.  They  are  intended  to  provide  a  rule-of- 
thumb  for  bringing  about  the  desired  result  as  nearly  as  possible. 

The  taxpayer  (other  than  one  whose  sole  business  is  in  dealing 
in  securities)  is  allowed  to  deduct  from  his  income  from  taxable 
intangibles  that  portion  of  the  interest  paid  by  him  during  the 
year  which  shall  bear  the  same  proportion  to  all  the  interest 
paid  by  him  other  than  on  loans  secured  by  mortgage  or  pledge 


450  Taxation  in  Massachusetts 

[G.  L.  c.  62,  §§  4,5,  (a) 

of  real  estate  or  tangible  personal  property  or  on  loans  incurred 
by  him  in  connection  with  his  business,  that  his  income  from 
taxable  intangibles  bears  to  his  total  income  other  than  from 
his  business,  employment  or  profession,  from  annuities,  from 
fiduciaries  and  from  buying  and  selling  securities;  provided, 
however,  that  such  deduction  cannot  exceed  eighty  per  cent  of 
the  total  income  from  taxable  intangibles. 

Fortunately  for  the  taxpayer  he  does  not  have  to  make  this 
computation  himself,  and  it  is  made  by  the  commissioner  on  the 
basis  of  the  figures  included  in  the  return  of  such  taxpayers  as 
claim  this  deduction.  A  person  claiming  the  deduction  is  nec- 
essarily obliged  to  include  in  his  return  his  income  from  all 
sources,  taxable  and  non-taxable,  in  the  latter  class  falling  income 
from  non-taxable  intangibles,  from  real  estate,  from  savings 
banks  and  all  other  sources.  In  determining  the  gain  from  the 
sale  of  property  for  the  purposes  of  the  interest  deduction  the 
same  rule  is  applied  as  when  the  determination  is  for  the  pur- 
pose of  levying  a  tax;  namely  the  price  at  the  sale  is  compared 
with  the  purchase  price  unless  the  property  was  bought  prior 
to  January  1,  1916,  in  which  case  the  value  at  that  date  is  the 
test.  The  cost  of  any  subsequent  additions  or  betterments  which 
may  properly  be  capitalized,  and  any  excess  of  expenses  over 
receipts,  may  be  added.  In  determining  the  total  income  of 
the  taxpayer,  losses  from  the  sale  of  real  estate  may  be  deducted 
from  income  from  other  sources. 

Annuities 

Section  5.  Income  of  the  following  classes  received  by  any  in- 
habitant of  the  commonwealth  during  the  preceding  calendar  year 
shall  be  taxed  as  follows : 

(a)  Income  from  an  annuity  shall  be  taxed  at  the  rate  of  one  and 
one  half  per  cent  per  annum.  The  income  of  property  held  in  trust 
shall  not  be  exempted  from  taxation  under  section  one  nor  shall  pay- 
ments to  beneficiaries  be  taxed  under  this  section,  because  of  the  fact 
that  the  whole  or  any  part  of  the  payments  to  the  beneficiaries  is  in 
the  form  of  an  annuity. 

An  annuity  taxable  under  this  act  is  a  definite  sum  of  money 
payable  annually,  or  in  fractions  or  parts  of  a  year,  to  an  inhabi- 
tant of  this  commonwealth,  during  the  life  of  one  or  more 


Taxation  of  Incomes  451 

G.  L.  c.  62,  §  5,  (a)   (&)] 

persons,  which  he  has  a  right  to  receive  without  regard  to  the 
actual  income  derived  from  any  particular  source  by  the  person 
or  corporation  bound  to  pay  it. 

Income  from  an  annuity  is  taxed  at  a  lower  rate  than  income 
from  intangible  property  partly  because  the  capitalized  value 
of  an  annuity  is  less  than  the  value  of  property  producing  an 
equivalent  annual  income  and  partly  because  the  income  from 
an  annuity  had  been  taxed  for  over  eighty  years  at  the  local 
rate,1  which  in  the  years  before  the  enactment  of  the  income 
tax  act  averaged  about  1.8  per  cent,  and  it  was  not  the  purpose 
of  this  statute  to  increase  the  burden  of  taxation  upon  any  class 
of  property. 

An  annual  payment  does  not  cease  to  be  an  annuity  because 
its  amount  was  determined  at  an  interest  rate  and  not  by  the  use 
of  a  mortality  table,  or  because  it  is  stipulated  that  even  if  the 
annuitant  dies  the  payments  will  continue  until  their  total 
reaches  a  certain  sum.  Pensions  which  the  pensioner  is  legally 
and  irrevocably  entitled  to  receive  are  taxable  as  annuities  unless 
specially  exempted  by  law.  Pensions  granted  by  the  United 
States  are  not  taxable  by  the  state. 

The  proceeds  of  an  insurance  policy  payable  to  a  designated 
beneficiary  in  fixed  annual  amounts  during  his  life  are  taxable 
as  an  annuity.2  The  right  to  receive  alimony  is  not  taxable 
as  an  annuity.  The  payment  of  a  fixed  sum  annually  out  of 
the  income  of  any  particular  property  by  an  executor,  adminis- 
trator or  trustee  is  not  taxable  as  an  annuity;  but  a  charge  or 
condition  attached  to  a  gift  or  devise  and  providing  for  the  an- 
nual payment  by  the  donee  or  devisee  of  a  fixed  sum  to  a  third 
person  does  create  a  taxable  annuity. 

Income  from  Professions,  Employments,  Trade  or  Business 

(6)  The  excess  over  two  thousand  dollars  of  the  income,  as  de- 
fined in  section  six,  derived  from  professions,  employments,  trade  or 
business  shall  be  taxed  at  the  rate  of  one  and  one  half  per  cent  per 
annum.     In   determining  such  income   the   rental   value   of   living 

1  The  provision  in  regard  to  the  taxation  of  income  from  an  annuity  was  in- 
troduced for  the  first  time  in  the  Revised  Statutes  of  1836,  although  it  is  not 
referred  to  in  the  Commissioners'  Notes. 

2  An  insurance  company  may  he  taxed  on  account  of  annuity  contracts  while 
the  annuitant  is  at  the  same  time  subjected  to  an  income  tax  on  the  annuity. 
Mutual  Benefit  Life  Insurance  Co.  v.  Commonwealth,  227  Mass.  63  (1917). 


152  Taxation  in  Massachusetts 

[G. L. c. 62, § 5,  (b) 

quarters  furnished  any  individual  as  part  of  his  compensation  shall 

be  included.    The  wages  and  salaries  of  employees  and  officers  of  the 

United  States  government  shall  not  be  taxed.    Retirement  allowances, 

however  described,  from  the  commonwealth  or  any  county,  city,  town 

or  district  thereof,  or  from  any  person,  if  not  exempt  by  law,  and 

interest  received  in  the  course  of  business  by  persons  loaning  money 

as  a  business  upon  the  pawn  or  pledge  of  tangible  personal  property, 

shall  be  taxed  under  this  subsection. 

As  early  as  1646,  special  provision  was  made  in  the  Massa- 
chusetts Bay  Colony  for  the  taxation  of  all  such  persons  as  by 
the  advantage  of  their  arts  and  trades  were  better  able  to  help 
bear  the  public  charges  than  common  laborers  and  workmen. 
Such  persons  were  to  be  rated  for  their  returns  and  gains,  in 
the  same  proportion  as  other  men  for  the  produce  of  their  es- 
tates. All  of  the  tax  laws  in  the  colonial  and  provincial  periods 
continued  this  tax,  which  was  generally  described  as  a  tax  on  in- 
comes by  any  trade  or  faculty.  This  tax  was  kept  in  force  after 
the  Revolution,  and  income  from  a  profession,  trade  or  employ- 
ment was  taxed  in  each  town  at  the  same  rate  as  real  estate 
and  personal  property.1  In  1849  income  of  this  class  not  exceed- 
ing six  hundred  dollars  was  exempted,  and  in  1873  this  exemp- 
tion was  extended  to  two  thousand  dollars  as  a  concession  to 
the  merchants  and  tradesmen  of  Boston  and  other  commercial 
centres,  who  had  made  great  efforts  to  have  the  tax  repealed. 

The  tax  was  very  unequally  enforced ;  as  there  were  no  com- 
pulsory returns,  in  some  towns  it  was  ignored  altogether;  in 
others  "personal  estate  and  income"  furnished  a  convenient 
catch-all  to  use  in  order  to  reach  for  taxation  persons  who  were 
apparently  in  comfortable  circumstances  but  about  whose  re- 
sources little  was  known.  In  a  few  cities  a  genuine  effort  was 
made  to  enforce  the  tax. 

Although  the  real  purpose  of  the  income  tax  act  of  1916  was 
to  provide  a  more  equitable  and  practicable  method  of  taxing 
intangible  personal  property  than  was  furnished  by  the  direct 
property  tax,  it  was  thought  best,  in  order  to  provide  against 
any  possible  loss  of  revenue  by  the  reduction  in  the  rate  of  the 
tax  on  intangibles,  and  to  make  the  operation  of  the  tax  laws 

1  Wilcox  v.  Middlesex  County  Commissioners,  103  Mass.  544  (1870).  Whether 
this  tax  was  an  excise  or  a  property  tax  was  never  decided.  See  Opinion  of  the 
Justices,  220  Mass.  613,  625  (1915). 


Taxation  of  Incomes  453 

G.L.c.  62,  §5,  (ft)] 

more  equitable,  to  convert  the  time  honored  municipal  tax  on 
the  income  from  trades,  professions  and  employments  into  a 
state  tax  at  a  uniform  rate,  and  to  provide  for  compulsory  re- 
turns. Although  the  average  rate  throughout  the  state  was  ap- 
proximately 1.8  per  cent,  the  rate  fixed  for  the  tax  under  the  new 
statute  was  but  1.5  per  cent,  and  the  exemption  of  two  thousand 
dollars  was  retained,  and  additional  allowances  were  granted  for 
dependents. 

The  scope  of  the  section  is  broad,  and  it  includes  almost 
every  form  of  income  derived  from  the  personal  efforts  of  the 
taxpayer.  It  is  of  course  not  necessary  that  the  income  be  in 
money,  and  compensation  for  services  in  property  or  in  the  right 
to  occupy  a  dwelling  is  taxable  at  its  money  value.  Even  the 
value  of  so  much  of  the  products  of  a  farm  as  the  farmer  de- 
votes to  the  use  of  himself  and  his  family  is  taxable.  Commis- 
sions and  directors'  fees  are  taxable.  A  bonus  paid  to  an  em- 
ployee is  taxable  to  him  if  it  is  additional  compensation  for  his 
services  and  is  considered  a  business  expense  by  the  employer. 

An  employment  would  probably  include  almost  any  per- 
sonal service  performed  for  another,  for  which  the  taxpayer  was 
compensated,  even  if  his  employment  was  temporary,  casual  or 
irregular  or  consisted  of  but  a  single  specified  piece  of  work.  A 
business  is  not  so  easy  to  delimit.  One  who  sold  his  dwelling 
house,  or  his  yacht,  or  his  automobile,  at  a  profit  would  not  be 
taxable  on  such  profit  as  income  from  business.  Business  im- 
ports a  customary  and  habitual  occupation,  yet  a  person  who  has 
made  but  a  single  transaction  in  a  year  may  under  some  cir- 
cumstances be  held  to  be  in  business  and  his  profit  therefrom 
may  be  taxable. 

If  a  person  has  several  different  employments  or  occupations 
during  a  year,  he  is  taxable  on  the  total  income  from  all. 

Rents  payable  solely  as  the  compensation  for  the  use  of  real 
estate  are  clearly  not  taxable  to  the  owner  of  the  real  estate  as 
business  income,  even  if  he  has  no  other  occupation  than  col- 
lecting the  rents  and  caring  for  the  property  which  produces  the 
rent.  If  however  he  heats  and  lights  the  rented  property,  fur- 
nishes elevator  service  and  employs  janitors  and  scrub-women 
upon  the  premises  it  might  be  contended  that  he  was  in  business 
and  that  his  income  from  the  property  was  a  business  income. 
In  such  case  however  it  would  seem  that  in  any  event  the  excess 


454  Taxation  in  Massachusetts 

[G.  L.  c.  62,  §  5,  (6) 

of  the  actual  income  of  the  property  over  what  the  fair  rental 
value  thereof  would  be  without  such  service  would  be  all  that 
could  fairly  be  attributable  to  the  business,  the  rest  being  rent 
of  real  estate  and  not  taxable  income.  Even  if  under  such  con- 
ditions the  whole  income  was  held  taxable,  the  tax  would  not 
reach  a  very  large  proportion  of  the  owner's  income  from  the 
property,  since  the  deduction  of  five  per  cent  of  the  value  of 
the  property  employed  in  the  business  under  section  6,  subsec- 
tion (g)  would  be  very  substantial. 

A  trustee  or  other  fiduciary  who  carries  on  business  as  such 
is  entitled  to  claim  the  exemption  of  two  thousand  dollars  or 
more  (depending  on  the  number  of  dependents  of  the  beneficiary) 
for  each  beneficiary  entitled  to  share  in  the  income,  provided  that 
the  beneficiary  did  not  receive  business  income  from  other 
sources  which  consumed  his  exemption.  The  trustee  cannot  how- 
ever claim  on  account  of  any  beneficiary  an  exemption  greater 
than  that  beneficiary's  share  of  the  income,  nor  can  he  claim 
any  exemption  on  account  of  any  non-resident  beneficiary,  since 
the  share  of  the  income  payable  to  such  beneficiary  is  not  taxable 
under  the  act. 

The  salary  of  an  officer  or  employee  of  the  United  States  is 
beyond  the  power  of  the  state  to  tax;2  but  in  the  original  income 
tax  act  it  was  provided  that  if  an  officer  or  employee  of  the 
United  States  was  in  receipt  of  business  income  from  other 
sources,  so  much  of  such  other  income  should  be  taxed  as,  when 
added  to  the  federal  salary,  exceeded  two  thousand  dollars.  This 
method  of  indirectly  reaching*  the  federal  salary  having  been 
held  improper,3  the  statute  was  changed  accordingly.  A  person 
receiving  business  income  through  a  contract  with  the  United 
States,  and  who  is  not  an  officer  or  employee  of  the  federal  gov- 
ernment, is  however  taxable  thereon. 

The  tax  on  business  income  takes  no  account  of  the  place 
where  the  business  is  carried  on,  and  liability  to  taxation  depends 
wholly  upon  the  domicile  of  the  taxpayer.  A  resident  of  this 
commonwealth  is  taxable  for  the  income  from  a  profession,  em- 
ployment, trade  or  business  carried  on  entirely  in  another  state 
or  country;  and  conversely,  although  it  would  clearly  lie  within 

2Supra,  Part  I,  §28. 

"Biscoe  v.  Tax  Commissioner,  236  Mass.  201   (1920). 


Taxation  of  Incomes  455 

G.L.c.62,§5,  (6)   (c)] 

its  power,  this  commonwealth  has  not  attempted  to  tax  the 
business  income  of  non-residents  earned  within  its  limits. 

Gains  from  Sales  of  Intangibles 

(c)  (As  amended  by  St.  1921,  chapter  376.)  The  excess  of  the 
gains  over  the  losses  received  by  the  taxpayer  from  purchases  or  sales 
of  intangible  personal  property,  whether  or  not  said  taxpayer  is 
engaged  in  the  business  of  dealing  in  such  property,  shall  be  taxed 
at  the  rate  of  three  per  cent  per  annum.  Any  trustee  or  other  fidu- 
ciary may  charge  any  taxes  paid  under  this  paragraph  against  princi- 
pal in  any  accounting  which  he  makes  as  such  trustee. 

This  paragraph  imposes  a  tax  on  a  source  of  income  which 
was  not  taxed  under  the  law  as  it  previously  existed  and  is  thus 
not  in  harmony  with  the  general  purpose  of  the  income  tax  act, 
which  was  to  reduce  and  equalize  the  burden  of  taxation  rather 
than  to  lay  taxes  on  subjects  which  had  previously  not  been 
taxed.  It  was  not  contained  in  the  original  draft  of  the  bill,  but 
was  introduced  later,  in  order  to  reach  the  large  fortunes  which 
were  being  made  in  stock  speculation  during  the  war.  The  con- 
stitutionality of  the  tax  imposed  by  this  paragraph  was  assailed 
on  the  ground  that  a  gain  made  in  the  sale  of  stocks  by  a  person 
not  engaged  in  the  business  of  buying  and  selling  securities  was 
an  increase  in  capital,  and  not  income,  and  could  not  be  taxed 
as  income;  but  the  court  held  that  the  word  "income"  in  the 
Forty-fourth  Amendment  is  susceptible  of  a  meaning  sufficiently 
broad  to  include  gain  from  even  a  single  isolated  sale  of  intangible 
property;  and  that  the  statute  was  not  objectionable  as  levying 
a  tax  at  a  different  rate  from  the  same  class  of  property,  as  income 
from  dividends  or  interest  and  income  from  the  sale  of  the  prop- 
erty from  which  such  dividends  or  interest  might  arise  do  not 
properly  belong  to  the  same  class.1 

Under  this  paragraph  it  has  been  ruled  in  accordance  with 
the  provisions  of  section  seven  that  when  property  sold  during 
any  year  was  owned  by  the  seller  on  January  1,  1916,  his  profit 
or  loss  is  to  be  determined  by  comparing  the  selling  price  with 
the  market  value  of  the  security  on  January  1,  1916.  The  com-' 
missioner  has  prepared  pamphlets  showing  the  value  on  January 
1,  1916,  of  the  securities  commonly  bought  and  sold.     These 

'Tax  Commissioner  v.  Putnam,  227  Mass.  522  (1917). 


156  Taxation  in  Massachusetts 

[G.  L.  c.  62,  §  5,  (c) 

values  are  of  course  not  binding  on  the  taxpayer  but  are  gen- 
erally accepted  in  the  absence  of  evidence  showing  them  to  be 
wrong.2 

In  case  the  property  sold  was  purchased  after  January  1, 
1916,  the  actual  price  paid,  plus  the  broker's  commission  paid 
for  the  purchase,  is  taken  as  the  cost,  and  in  every  case  the  actual 
price  received,  less  the  broker's  commission  paid  for  the  sale  and 
the  stamp  tax,  is  taken  as  the  selling  price.  If  the  security  be- 
comes worthless,  and  so  unsalable  at  any  price,  it  may  be  cred- 
ited as  a  total  loss. 

It  has  been  held  that  the  price  received  from  the  sale  of 
"rights" — the  transferable  privilege  given  to  stockholders  in  a 
corporation  about  to  issue  new  stock  to  subscribe  to  such  stock  at 
a  specified  price — is  taxable  under  this  section  even  if  the  stock 
itself  decreased  in  value  at  the  time  of  the  new  issue.3  A  liquor 
license  and  a  seat  on  the  stock  exchange  are  also  considered  to  be 
"intangible  property,"  profit  on  the  sale  of  which  is  taxable  under 
this  subsection. 

The  "purchases  or  sales"  of  intangible  personal  property  re- 
ferred to  in  this  paragraph  are  not  necessarily  purchases  or  sales 
for  money,  but  include  exchanges  of  securities  or  the  disposition 
of  securities  for  anything  of  value.  Many  taxpayers  have  won- 
dered how  there  can  be  any  gain  or  profit  on  a  fair  and  equal 
exchange.  The  comparison  is  however  made  between  the  value 
of  the  security  owned  by  each  taxpayer  on  January  1,  1916  (or 
the  price  which  he  paid  when  he  bought  it,  if  his  purchase  was 
subsequent  to  that  date)  and  the  value  on  the  date  of  the  ex- 
change of  the  property  for  which  he  exchanged  it.  If  both 
securities  have  appreciated  in  value,  both  parties  to  the  exchange 
make  a  profit  and  are  taxable  thereon.  To  ascertain  the  amount 
of  the  profit,  the  commissioner  must  determine  the  value  of  the 
property  exchanged  on  the  date  of  the  exchange.4 

2Thus  in  Osgood  v.  Tax  Commissioner,  235  Mass.  88  (1920),  the  commis- 
sioner's determination  of  value  was  shown  to  be  erroneous,  and  an  abatement 
granted.  Doubtless  if  the  transaction  was  in  fact  a  loss,  it  would  not  be  taxed 
as  a  profit  merely  because  the  security  sold  for  a  higher  figure  than  its  value  on 
Jan.  1,  1916.    See  Goodrich  v.  Edwards,  255  U.  S.  527   (1921). 

3  Tax  Commissioner  v.  Putnam,  227  Mass.  522  (1917). 

4  Thus  if  A  bought  10  shares  of  the  X  Co.  in  1914  for  $80  a  share,  and  the 
shares  were  worth  $90  a  share  on  Jan.  1,  1916,  and  B  bought  10  shares  of  the  Y 
Co.  in  July,  1916,  for  $90  a  share  and  they  made  an  equal  exchange  in  July, 
1919,  and  at  that  time  the  stock  in  each  company  was  worth  $120  a  share,  each 
would  have  made  a  taxable  gain  of  $30  a  share,  or  $300  and  would  be  taxable 
thereon  at  3%,  or  for  $9. 


Taxation  of  Incomes  457 

G.  L.  c.  62,  §  5,  (c)  (d)] 

Even  when  the  exchange  is  a  step  in  the  course  of  the  reor- 
ganization of  one  or  more  corporations  it  is  taxable,  although 
the  taxpayer  does  no  more  than  to  exchange  shares  of  an  old 
corporation  for  shares  of  a  new  corporation  which  has  taken  over 
the  property  of  the  old,  whether  the  new  corporation  is  a  consoli- 
dation of  several  old  ones,5  or  is  formed  to  take  over  the  business 
of  but  one  existing  corporation  and  carries  on  the  identical  bus- 
iness without  any  outward  appearance  of  change.6 

When  an  executor,  administrator  or  other  fiduciary  distrib- 
utes securities  to  a  legatee  in  payment  of  a  legacy  of  a  specific 
sum  it  has  been  ruled  that  such  distribution  is  to  be  taken  as  a 
sale  of  the  securities  for  the  amount  of  the  legacy  and  the  profit 
or  loss  is  to  be  figured  accordingly.  The  payment  of  a  bond  when 
due  is  not  a  sale,  and  the  difference  between  the  amount  so  paid 
and  the  price  paid  for  the  bond  is  not  a  gain  or  loss  within  the 
meaning  of  this  section. 

If  intangible  property  is  sold  which  was  received  as  a  gift 
or  legacy,  or  as  compensation  for  services  or  as  a  dividend,  the 
actual  value  when  received  is  taken  as  the  cost  price  except 
in  case  of  a  stock  dividend  of  stock  of  the  corporation  issuing  the 
dividend  in  which,  under  the  present  ruling,  the  entire  amount 
of  the  price  received  is  considered  as  gain,  and  in  case  of  a  spe- 
cific legacy,  when  the  value  is  taken  as  of  the  death  of  the  testa- 
tor. If  intangible  property  is  sold  by  a  fiduciary  or  assignee  or 
similar  functionary,  the  cost  to  the  person  whose  estate  he  repre- 
sents is  taken  as  the  cost,  or  if  the  property  was  bought  prior  to 
January  1,  1916,  the  value  on  that  date. 

Income  of  Unincorporated  Associations  Taxable  under 

Section  Five 

(d)  Income  of  the  classes  enumerated  in  subsections  (a),  (b)  and 
(c)  received  by  any  partnership,  association  or  trust,  the  beneficial 

6  Stone  v.  Tax  Commissioner,  235  Mass.  93  (1920). 

"Osgood  v.  Tax  Commissioner,  235  Mass.  88  (1920).  In  this  case  a  corpor- 
ation having  both  common  and  preferred  stock  had  a  large  surplus  and  a  new 
corporation  with  a  larger  capitalization  was  organized  with  no  preferred  stock, 
and  the  stockholders  of  the  old  company  were  given  an  opportunity  to  exchange 
their  old  stock,  both  common  and  preferred,  for  a  larger  amount  of  the  common 
stock  of  the  new  company.  This  transaction  was  held  taxable.  The  justice  of 
taxing  a  profit  of  this  character,  which  may  never  be  realized,  has  been  much 
questioned,  and  in  the  Federal  Revenue  Act  of  1921  it  is  expressly  provided  that 
such  transactions  shall  not  be  taxed. 


458  Taxation  in  Massachusetts 

[G.  L.  c.  62,  §  5,  (d)  (e) 
interests  in  which  are  represented  by  transferable  shares,  shall  be 
taxed  under  this  section,  unless  the  dividends  on  the  transferable 
shares  issued  by  such  partnership,  association  or  trust  are  taxable 
under  section  one. 

When  the  dividends  paid  by  unincorporated  associations  are 
taxable  to  the  holders  of  shares  in  the  association,  and  when  the 
associations  are  themselves  taxable  on  their  income  and  the 
shareholders  are  exempt  is  determined  by  the  provisions  of  para- 
graphs (c),  (d)  and  (e)  of  section  one. 

Income  from  Intangibles  Not  Taxable  under  Section  Five 

(e)  Interest  and  dividends  taxable  under  section  one  shall  not 
be  taxed  under  this  section. 

This  provision  was  intended  to  make  it  clear  that  income  from 
securities  held  by  a  person  in  connection  with  his  business  should 
not  be  taxed  as  business  income ;  if  taxable  the  income  is  taxed  at 
the  six  per  cent  rate ;  if  non-taxable  the  income  is  not  taxed  at  all. 
In  other  words  this  paragraph  is  a  direct  implication  that  the 
commissioner  can  analyze  the  income  derived  from  professions, 
employments,  tr*ade  or  business  and  tax  at  six  per  cent  so  much 
of  it  as  is  income  taxable  under  section  one  and  the  balance,  so  far 
as  it  is  not  from  sources  specifically  exempt,  at  one  and  one-half 
per  cent.1 

Determination  of  Business  Income 

Section  6.  Income  taxable  under  subsection  (&)  of  section  five 
shall  be  the  gross  income  from  the  profession,  employment,  trade  or 
business,  in  the  year  for  which  the  income  is  computed,  not  including 
income  exempt  from  taxation  under  this  chapter  or  taxable  hereunder 
otherwise  than  under  said  subsection  (&),  but  including  gains  from 
the  sale  of  capital  assets,  other  than  intangible  personal  property, 
employed  therein ;  less  the  following  deductions : 

The  gross  income  from  a  profession  is  the  total  of  the  gross 
receipts.  The  gross  income  of  an  employment  is  the  salary, 
wages,  or  commissions  received  during  the  year,  including  any 
bonus  or  extra  compensation  to  which  the  employee  is  legally 

Goldman  v.  Tax  Commissioner,  230  Mass.  554   (1918). 


Taxation  op  Incomes  459 

G.L.c.  62,  §6,  (a)] 

entitled  but  not  including  such  an  element  if  it  is  a  gift.  Fees 
received  by  directors  of  corporations  are  taxable  as  income.  Or- 
dinarily the  gross  income  of  an  employment  is  also  the  net  in- 
come except  for  the  taxes  paid  thereon.  The  gross  income  of  a 
trade  or  business,  unless  the  person  taxed  customarily  estimates 
his  income  upon  a  more  accurate  basis  in  accordance  with  sec- 
tion seven,  is  the  excess  of  the  total  amount  of  money  actually 
received  during  the  year  from  the  sale  of  goods  over  the  total 
amount  paid  during  the  year,  in  the  case  of  a  mercantile  business 
for  the  purchase  of  stock  in  trade,  and,  in  the  case  of  a  manu- 
facturing business,  for  the  purchase  of  raw  material.  From  the 
gross  income  thus  ascertained  the  taxpayer  is  entitled  to  make 
the  deductions  set  out  in  the  following  subsections. 


Deductions — Business  Expenses 

(a)  Expenses  paid  withm  the  year  in  the  profession,  employment, 
trade  or  business,  including  the  cost  of  ordinary  repairs  but  not  in- 
cluding personal  or  family  expenses;  provided,  that  premiums  paid 
for  use  and  occupancy  insurance,  or  rent  insurance,  shall  not  be  de- 
ducted as  part  of  such  expenses. 

This  of  course  includes  such  items  as  rent  of  the  taxpayer's 
office  or  place  of  business,  heating  and  lighting  the  same,  and 
wages,  fees,  salaries  and  commissions  paid  by  him  to  employees 
or  others  for  services  in  connection  with  his  business.  Bonuses, 
extra  commissions  or  gifts  to  employees  cannot  be  considered 
unless  the  employee  was  legally  entitled  thereto  by  the  terms 
of  his  contract. 

The  proprietor  of  the  business  is  not  entitled  to  deduct  the 
amount  of  his  drawing  account  or  compensation  for  his  time 
and  labor,  and  the  same  is  true  of  a  partnership.  The  salaries, 
so-called,  or  drawing  account,  of  the  partners  are  really  a  divi- 
sion of  income,  which  is  taxable  to  the  partnership  and  not  to 
the  partners. 

Ordinary  repairs  of  property  used  in  the  business  constitute 
a  deductible  expense;  but  permanent  additions  to  equipment, 
plant  or  other  capital  assets,  and  amounts  expended  for  per- 
manent improvements  and  betterments,  or  for  extraordinary 
repairs   which   appreciably   prolong   the   life   of  the   property, 


460  Taxation  in  Massachusetts 

[G.  L.  c.  62,  §  6,  (a)   (b) 

constitute  a  capital  investment,  and  cannot  be  charged  as  a 
deduction  against  income. 

Deductions  Continued — Depreciation,  Obsolescence  and 

Depletion 

(b)  A  reasonable  allowance  for  depreciation  and  obsolescence  of 
property  within  such  year,  and  for  depletion  within  the  year  of  wast- 
ing assets  owned  by  the  person  taxed  and  used  in  the  profession,  em- 
ployment, trade  or  business;  provided,  that  with  the  approval  of  the 
commissioner  a  taxpayer  may,  in  lieu  of  the  aforesaid  allowance  for 
depreciation  and  obsolescence,  be  allowed  to  deduct  actual  expenses  of 
replacement  of  capital  and  extraordinary  repairs,  and  with  such  ap- 
proval may  in  any  year  defer  such  deductions  in  whole  or  in  part  to 
one  or  more  subsequent  years. 

The  taxpayer  cannot  of  course  charge  off  both  an  allowance 
for  depreciation  and  obsolescence  and  the  actual  cost  of  making 
good  such  depreciation  and  obsolescence,  but  is,  with  the  per- 
mission of  the  commissioner,  allowed  to  choose  which  method 
of  crediting  himself  with  this  loss  he  shall  adopt.  The  concluding 
clause  of  this  paragraph  makes  provision  for  cases  in  which  such 
radical  repairs  or  replacement  are  made  that  the  cost  exceeds 
the  net  income  of  the  year.  As  the  taxpayer  cannot  set  off  the 
net  loss  on  his  operations  of  that  year  against  profits  of  the  ensu- 
ing year  he  is  allowed  to  spread  his  deductions  over  the  following 
year  or  years  so  that  he  may  get  full  credit  for  them. 

A  deduction  for  depreciation  and  obsolescence  is  allowed 
only  upon  capital  assets  used  in.  the  business;  the  depreciation 
of  stock  in  trade  or  goods  purchased  for  manufacture  or  sale 
will  be  shown  in  the  inventory  if  one  is  taken  or  reflected  in  the 
decreased  receipts  when  the  goods  are  sold.  No  deduction  is 
allowed  for  depreciation  of  the  good  will  of  the  business. 

When  no  other  more  accurate  measure  is  available,  the  usual 
method  of  determining  the  annual  allowance  for  depreciation 
or  depletion  is  to  divide  the  cost  of  the  property  when  new  by 
the  number  of  years  of  its  anticipated  life  and  to  deduct  each 
year  the  amount  thus  determined.  Thus  in  the  case  of  pat- 
ents, which  expire  at  the  end  of  seventeen  years,  one  seven- 
teenth of  the  cost  of  securing  or  purchasing  the  patent  may  be 
claimed  as  the  annual  allowance  for  depletion. 


Taxation  op  Incomes  461 

G.  L.c.  62,  §6,  (c)] 

Deductions  Continued — Taxes  Paid 

(c)  All  taxes  paid  within  the  year  to  the  United  States  or  any- 
other  nation,  or  to  any  state,  county,  city,  town  or  district,  in  respect 
of  the  profession,  employment,  trade  or  business,  or  the  property  held 
or  used  in  connection  therewith,  but  not  including  assessments  for 
betterments. 

It  will  be  noted  that  the  federal  income  tax  (or  a  portion 
thereof)  is  deductible  from  the  tax  on  business  income,  but  not 
from  the  tax  on  the  income  of  intangibles.  Taxpayers  should 
bear  in  mind  that  inasmuch  as  the  tax  imposed  by  the  portion 
of  the  statute  now  under  consideration  is  a  tax  on  income  of  a 
limited  kind  only,  the  deduction  allowed  is  with  respect  to  the 
tax  on  that  same  kind  of  income  only  or  on  property  held  or 
used  in  connection  therewith,  and  in  this  respect  differs  from  the 
federal  income  tax,  which  is  a  general  income  tax  and  from  which 
taxes  generally  can  be  deducted.  Accordingly,  only  that  portion 
of  the  income  tax,  state  or  federal,  which  was  assessed  in  the 
preceding  year  with  respect  to  business  income  can  be  deducted 
from  the  business  income  of  that  year. 

The  income  tax  paid  to  the  state  on  business  income  in  the 
preceding  year  can  be  readily  ascertained;  the  federal  income 
tax  paid  on  this  class  of  income  during  the  preceding  year  is 
more  difficult  of  computation,  but  it  may  be  ascertained  by 
the  following  formula,  reference  being  made  to  the  figures  shown 
in  the  federal  income  tax  return  of  the  taxpayer  for  the  pre- 
ceding year. 

a  —  net  income  from  salaries,  wages,  business  or  profession. 
b  =  taxable  income  from  all  sources,  except  dividends  and  liberty 
bonds,  excluding  from  consideration  "minus  items"  and  deduc- 
tions, c  =  total  normal  tax  paid,  d  =  taxable  income  from  all 
sources,  excluding  from  consideration  "  minus  items  "  and  deduc- 
tions, e  =  total  surtax  paid.  The  amount  deductible  for  the 
purposes  of  the  state  income  tax  is 

a  a 

—  X  c  +  — Xe 
b  d 

Deductions  Continued — Interest  on  Business  Debts 

(d)  Interest  paid  within  the  year  on  indebtedness  of  the  person 
taxed  incurred  in  connection  with  his  profession,  employment,  trade 


462  Taxation  in  Massachusetts 

[G.  L.  c.  62,  §  6,  (d)  (e)  (f) 
or  business ;  but  no  interest  allowed  as  a  deduction  under  section  two 
shall  also  be  allowed  under  this  section. 

This  deduction  is  strictly  limited  to  interest  paid  on  indebted- 
ness incurred  in  connection  with  the  business,  and  whether  an 
indebtedness  is  incurred  in  connection  with  the  business  is  a 
question  of  fact  in  each  instance,  depending  on  the  use  to  which 
the  funds  are  put.  Unlike  the  federal  income  tax,  the  taxpayer 
cannot  deduct  interest  on  money  borrowed  for  living  expenses, 
or  on  a  mortgage  upon  his  home,  unless  the  money  so  obtained 
was  used  in  his  business. 

Deductions  Continued — Losses  and  Destruction  of 

Capital  Assets 

(e)  Losses  from  the  sale  within  the  year  of  capital  assets  other 
than  intangible  personal  property,  and  losses  of  capital  assets  other 
than  stock  in  trade  sustained  within  the  year  by  fire,  theft  or  other 
casualty,  or  amounts  paid  within  the  year  on  account  of  claims  in 
law  or  equity  incurred  in  connection  with  the  profession,  employ- 
ment, trade  or  business,  when  such  losses  or  amounts  paid  are  not 
compensated  for  by  insurance  or  otherwise. 

The  reason  that  losses  connected  with  stock  in  trade  are 
not  allowed  as  a  deduction  is  that  they  are  covered  by  the  allow- 
ance for  the  cost  of  goods  when  purchased.  In  determining  the 
loss  from  the  sale  of  capital  assets  under  this  paragraph,  the 
value  on  January  1,  1916,  of  such  property  as  was  owned  on 
that  date  and  the  actual  cost  of  property  acquired  since  that 
date  is  taken  as  the  basis  for  comparison,  subject  to  correction 
by  adding  all  amounts  expended  upon  the  property  and  capital- 
ized and  deducting  all  amounts  written  off  or  allowed  for  de- 
preciation. 

Deductions  Continued — Losses  from  Bad  Debts 

(/)  The  amount  of  any  debts  receivable  arising  from  the  conduct 
of  the  profession,  employment,  trade  or  business  subsequent  to  Decem- 
ber thirty-first,  nineteen  hundred  and  fifteen,  determined  by  the 
person  taxed  to  be  worthless  and  actually  charged  off  during  the 
year;  but  no  debts  receivable  shall  be  so  charged  off  and  deducted, 
unless  they  have  previously  been  included  as  income  in  a  return  made 
under  this  chapter  or  corresponding  provisions  of  earlier  laws. 

Only  such  bad  debts  can  be  deducted  from  the  income  of  a 


Taxation  of  Incomes  463 

G.L.c.62,§6,  (/)   (g)} 

profession,  employment,  trade  or  business  as  arose  in  connection 
with  such  profession,  employment,  trade  or  business,  and  then 
only  if  they  have  previously  been  included  as  income  in  a  re- 
turn by  a  taxpayer.  If  the  taxpayer  returns  his  income  on  a 
cash  basis,  he  can  claim  no  deduction  for  bad  debts,  because  he 
never  includes  in  his  return  a  charge  made  by  him  against  a  cus- 
tomer until  it  is  paid.  If  a  charge  proves  uncollectible,  and  it 
is  based  on  merchandise  sold,  the  taxpayer  is  entitled  to  a  de- 
duction for  the  cost  of  the  goods,  not  as  a  bad  debt  but  in  deter- 
mining the  gross  income  of  the  business.  He  is  not  entitled  to 
deduct  the  expected  profit  from  the  sale,  or  the  charges  made  by 
him  for  personal  services  which  he  finds  himself  unable  to  col- 
lect, from  the  income  which  he  has  collected.  If  however  he 
makes  his  return  upon  an  accrual  or  inventory  basis  and  includes 
a  sale  on  credit  or  other  charge  as  income  and  subsequently 
finds  himself  unable  to  make  collection  thereon,  he  can  deduct 
the  amount  of  the  debt  as  a  loss  upon  the  next  return  filed  after 
the  debt  is  charged  off.  The  allowance  for  bad  debts  may  there- 
fore more  properly  be  designated  a  correction  than  a  deduction. 
In  the  original  income  tax  act  the  provision  that  no  debts 
should  be  charged  off  unless  they  had  previously  been  included 
in  a  return  was  limited  to  debts  receivable  as  income,  and  it  was 
considered  that  debts  receivable  as  principal  might  be  charged 
off  and  deducted  without  having  been  so  included,  because 
being  receivable  as  principal  they  would  not  have  been  properly 
returnable  as  income  under  the  act.  In  the  consolidation  of  the 
General  Laws  the  words  "as  income"  were  omitted  as  meaning- 
less and  confusing,1  and  as  the  law  now  stands  the  taxpayer  has 
no  right  to  a  deduction  for  an  impairment  of  capital  arising 
from  a  debt  receivable  as  principal  (such  as  a  loan  of  capital 
assets)  proving  uncollectible,  although  he  is  allowed  a  deduction 
for  the  impairment  of  his  capital  by  a  loss  in  the  sale  of  capital 
assets,  or  a  loss  by  fire,  theft  or  other  casualty,  under  the  preced- 
ing paragraph. 

Deductions  Continued — Income  Attributable  to  Capital 
Invested  in  the  Business 

(gr)  An  amount  equal  to  five  per  cent  of  the  assessed  value,  less 
the  amount  of  all  mortgages  thereon,  of  the  stock  in  trade  and  other 

'St.    1918,    c.    257,    §63;    and    see    Preliminary    Report    of    Commissioners, 
page  127. 


464  Taxation  in  Massachusetts 

[G.  L.  c.  62,  §  6,  (g)   (h) 

tangible  property,  real  and  personal,  owned  by  the  person  taxed  and 
used  or  employed  in  the  profession,  employment,  trade  or  business 
within  or  without  the  commonwealth,  on  the  day  as  of  which  such 
property  is  assessed  in  the  year  for  which  the  income  is  computed. 
In  case  any  such  stock  in  trade  or  other  tangible  property  located 
without  the  commonwealth  is  taxed  in  respect  of  its  income,  and  not 
in  respect  of  its  capital  value,  by  the  taxing  district  where  located 
in  such  year,  the  commissioner  may  determine  its  value  in  any  other 
manner,  and  may  allow  a  deduction  of  an  amount  equal  to  five  per 
cent  of  the  value  so  determined. 

This  deduction  originated  in  the  practice  of  the  Boston  as- 
sessors under  the  earlier  statute  taxing  business  incomes,  and  was 
based  upon  the  provision  in  the  statute  that  incomes  derived 
from  property  subject  to  taxation  should  not  be  taxed.  The 
practice  was  continued  with  express  statutory  sanction  under 
the  present  income  tax  act.  The  object  of  the  deduction  is  to 
avoid  double  taxation  and  to  confine  the  tax  upon  business  income 
to  a  tax  on  the  income  from  the  personal  efforts  of  the  person 
taxed  and  not  to  tax  the  income  from  his  capital,  which  is  rep- 
resented by  property  already  taxed.  It  is  a  fair  assumption  that 
five  per  cent  constitutes  the  return  from  the  capital  employed 
in  the  business  and  represented  by  the  stock-in-trade  and  other 
tangible  property  used  therein,  and  that  the  taxpayer  might 
have  received  a  return  of  five  per  cent  without  any  personal 
efforts  on  his  part  by  investing  his  money  in  securities  issued 
by  others;  and  that  the  excess  over  five  per  cent  is  the  return 
from  his  personal  efforts,  and  from  his  good  fortune,  skill  and 
judgment. 

Deductions  Continued — Allowances  for  Wife,  Children  or 

Dependent  Parents 

(h)  The  sum  of  five  hundred  dollars  for  a  husband  or  wife  with 
whom  the  taxpayer  lives,  and  the  sum  of  two  hundred  and  fifty  dollars 
for  each  child  under  the  age  of  eighteen,  or  parent  entirely  dependent 
on  the  taxpayer  for  support.  The  aforesaid  deduction  shall  not  be 
allowed  to  both  husband  and  wife,  but  may  be  allowed  to  either  as 
they  shall  mutually  agree,  or  shall  be  prorated  between  them  in  pro- 
portion to  the  net  income  of  each  in  excess  of  two  thousand  dollars. 


Taxation  of  Incomes  465 

G.L.c.62,§6,  (fc),§7] 

In  no  case  shall  the  total  deduction  on  account  of  husband  and  wife, 

and  children  and  parents,  exceed  one  thousand  dollars. 

This  provision  adopts  the  exemption  of  two  thousand  dol- 
lars found  in  the  previous  law  but  establishes  an  additional 
exemption  with  a  maximum  of  one  thousand  dollars  on  account 
of  persons  dependent  upon  the  taxpayer  for  support.  It  should 
be  remembered  that  this  exemption  applies  only  to  the  income 
from  professions,  employment,  trade  or  business  and  has  nothing 
to  do  with  the  tax  on  other  forms  of  income.  Unlike  the  federal 
law  this  statute  does  not  provide  for  a  combined  return  of  hus- 
band and  wife,  but,  in  the  very  unusual  case  of  a  husband  and 
wife  living  together  and  each  having  a  separate  business  income 
of  over  two  thousand  dollars,  the  additional  exemption  must 
be  apportioned. 

It  is  to  be  noted  that  a  husband  cannot  claim  a  deduction  on 
account  of  his  wife  even  if  he  supports  her  unless  he  is  actually 
living  with  her;  and  that  an  actual  living  apart  takes  away  the 
right  to  the  deduction  although  there  has  been  no  judicial  separa- 
tion. Under  the  rulings  of  the  commissioner,  to  claim  the  deduc- 
tion the  husband  and  wife  must  have  been  living  together  for 
at  least  six  months  of  the  taxable  year,  except  in  cases  where 
the  separation  has  been  caused  by  the  insanity  or  illness  of  either, 
or  by  the  husband's  or  wife's  temporary  absence  on  business  or 
on  account  of  health  or  similar  reason.  If  the  wife  dies  during 
the  taxable  year  the  husband  is  still  entitled  to  the  deduction, 
if  he  has  lived  with  her  for  six  months  of  the  year  before  her 
death.  On  the  other  hand  the  status  of  children  for  the  purposes 
of  this  deduction  is  determined  by  the  conditions  existing  on 
January  first  of  the  year  in  which  the  return  is  filed. 

Accrual  Basis  for  Determining  Income  Authorized 

Section  7.  Persons  who  customarily  estimate  their  income  and 
expenditure  on  a  basis  other  than  their  actual  cash  receipts  and  dis- 
bursements may,  with  the  approval  of  the  commissioner,  compute 
upon  a  similar  basis  their  income  taxable  under  this  chapter.  Persons 
who  customarily  estimate  their  income  and  expenditure  on  the  basis 
of  an  established  fiscal  year  instead  of  the  calendar  year,  may,  with 
the  approval  of  the  commissioner  and  subject  to  such   rules  and 


466  Taxation  in  Massachusetts 

[G.  L.  c.  62,  §  7 
regulations  as  he  may  establish,  return  their  income  taxable  under  this 
chapter  on  the  basis  of  such  fiscal  year. 

In  determining  gains  or  losses  realized  from  sale  of  capital  assets, 
the  basis  of  determination,  in  case  of  property  owned  on  January 
first,  nineteen  hundred  and  sixteen,  shall  be  the  value  on  that  date, 
and  in  case  of  property  acquired  thereafter,  the  value  on  the  date 
when  it  is  acquired. 

This  section  applies  both  to  income  from  intangible  personal 
property  and  to  business  income.  In  the  former  case  the  tax- 
payer may  figure  his  income  on  the  basis  of  dividends  and  inter- 
est actually  received  during  the  year,  or  he  may  figure  it  on  an 
accrual  basis.  In  respect  to  business  income  he  may  figure  it  on 
the  basis  of  actual  cash  receipts  and  disbursements,  or  upon  an 
annual  inventory  and  profit  and  loss  basis. 

Even  when  a  taxpayer  does  not  customarily  estimate  his  in- 
come on  an  accrual  basis,  if  he  buys  a  bond  or  a  share  of  stock 
for  a  fixed  price  plus  accrued  interest  or  accrued  dividend,  in 
returning  for  the  purposes  of  the  income  tax  the  interest  or 
dividend  subsequently  received  he  may  deduct  the  amount  so 
paid  for  accrued  interest  or  accrued  dividend.  Such  amount 
should  be  returned  as  income  by  the  seller,  if  an  inhabitant  of 
this  commonwealth. 

In  making  inventory,  all  raw  materials,  stock  in  process  of 
manufacture  and  finished  product,  owned  by  the  taxpayer, 
whether  or  not  in  his  possession,  should  be  included.  Inven- 
tories should  be  valued  at  cost,  or  at  cost  or  market  whichever  is 
lower,  and  the  method  selected  should  be  applied  to  each  item  in 
the  inventory,  and  adhered  to  in  subsequent  years,  unless  per- 
mission for  a  change  is  secured  from  the  commissioner.  Although 
it  is  optional  with  a  taxpayer  to  return  his  income  on  an  accrual 
basis,  the  commissioner  disapproves  of  a  return  on  a  cash  basis 
by  a  taxpayer  who  keeps  his  books  on  an  accrual  basis. 

The  date  fixed  by  the  statute  as  the  basis  for  determining 
property  values  for  the  purpose  of  ascertaining  gains  or  losses 
in  case  of  subsequent  sale  is  the  date  when  income  became  tax- 
able, although  the  income  tax  act  was  enacted  a  few  months 
later  and  the  constitutional  amendment  which  authorized  the 
taxation  of  incomes  was  adopted  in  the  previous  November. 
The  original  statute  required  all  returns  to  be  made  on  the  basis 


Taxation  op  Incomes  467 

G.  L.  c.  62,  §§  7,  8] 

of  the  calendar  year,  but  was  amended  in  1917  so  as  to  allow 
a  taxpayer  with  the  consent  of  tne  commissioner  to  return  his 
income  upon  the  basis  of  his  own  fiscal  year. 

Exemptions 

Section  8.  The  following  income  shall  be  exempt  from  the  taxes 
imposed  by  this  chapter : 

(a)  Three  hundred  dollars  in  all  of  income  taxable  under  section 
one  and  under  subsection  (a)  of  section  five,  received  by  a  person 
whose  total  income  from  all  sources  does  not  exceed  six  hundred  dol- 
lars during  the  year;  but  said  exemption  shall  not  be  given  to  any 
married  person  if  the  joint  income  of  both  husband  and  wife  from  all 
sources  exceeds  twelve  hundred  dollars. 

(6)  Income  received  by  corporations,  except  as  provided  in  sec- 
tion fourteen. 

(c)  Income  received  from  land  classified  under  chapter  sixty-one. 

(d)  Such  part  of  the  income  received  by  trustees  or  other  fidu- 
ciaries as  is  payable  to  or  accumulated  for  persons  not  inhabitants  of 
the  commonwealth. 

(e)  Income  of  intangible  personal  property  exempt  from  taxation 
by  section  five  of  chapter  fifty-nine,  except  under  clauses  seventeenth, 
eighteenth,  twenty-second,  twenty-third,  twenty -seventh,  twenty-ninth 
and  thirty-third  of  said  section. 

(/)  Income  from  an  annuity  or  pension  paid  by  a  town  in  this 
commonwealth  on  account  of  service  in  a  police  or  fire  department. 

(g)  Income  from  an  annuity,  pension  or  endowment  exempted 
by  section  thirty-seven  or  forty-one  of  chapter  thirty-two,  and  all 
sums  exempted  by  either  of  said  sections  by  virtue  of  their  being  de- 
ducted from  wages  as  contributions  to  an  annuity,  pension  or  endow- 
ment fund. 

Under  the  original  income  tax  act  the  exemptions  were  not 
specifically  enumerated,  but  it  was  provided1  that  the  act  should 
not  be  construed  to  impose  a  tax  upon  any  corporation  or  per- 
son in  respect  to  income  derived  from  property  exempted  from 
taxation  by  provisions  of  law  existing  prior  to  the  passage  of 
the  act.  As  this  provision  led  to  a  construction  of  the  act  by  the 
court  which  was  contrary  to  the  intention  of  its  framers2  it  was 

*St  1916,  c.  269,  §11. 

■  See  Maguire  v.  Tax  Commissioner,  230  Mass.  503  (1918). 


468  Taxation  in  Massachusetts 

[G.  L.  c.  62,  §§  8,  9 

thought  best  to  include  all  the  exemptions  in  one  section.  It  is 
however  to  be  noted  that  the  exemption  from  the  tax  on  business 
income  is  not  included  in  this  section,  but  is  found  in  the  last 
paragraph  of  section  six. 

The  provision  in  paragraph  (a)  was  adopted  after  much  dis- 
cussion, but  its  object  has  not  always  been  understood.  A  "flat" 
exemption  from  the  six  per  cent  tax  was  not  provided  because, 
the  tax  not  being  a  general  income  tax,  a  taxpayer  might  have 
a  very  large  income  from  non-taxable  sources,  and  but  a  small 
income  subject  to  this  tax,  and  no  reason  of  public  policy  requires 
such  a  person  to  be  exempted.  In  the  case  of  a  person  having 
no  other  income,  such  considerations  would  not  apply,  but  there 
had  previously  been  no  exemption  whatever  from  the  tax  on  the 
capital  value  of  taxable  securities  and  it  was  not  thought  wise 
to  provide  one  except  in  the  case  of  persons  whose  total  income 
was  so  small  that  it  might  well  be  thought  that  they  were  unable 
to  contribute  to  the  public  charges.  It  is  felt  by  some  that  the 
exemption  is  too  small  and  it  may  work  hardship  in  such  cases 
as  that  of  a  widow  with  young  children  and  no  income  other 
than  seven  or  eight  hundred  dollars  from  taxable  intangibles; 
but  an  "unearned  income"  is  not  looked  on  with  as  much  favor 
by  the  majority  of  the  people  as  an  "earned  income" ;  the  own- 
ership of  stocks  and  bonds  is  usually  confined  to  the  wealthier 
classes,  and  an  exemption  which  may  apply  to  a  person  who 
owns  intangibles  having  a  capital  value  of  ten  or  twelve  thou- 
sand dollars  when  the  exemption  in  favor  of  a  widow  or  orphan 
owning  real  estate  is  of  only  one  thousand  dollars  of  capital 
value3  would  not  seem  unduly  small. 

Estates  of  Deceased  Persons 

Section  9.  The  estates  of  deceased  persons  who  last  dwelt  in  the 
commonwealth  shall  be  subject  to  the  taxes  imposed  by  this  chapter 
upon  all  income  received  by  such  persons  during  their  lifetime,  if 
assessed  within  the  time  limited  by  section  thirty-seven,  except  income 
taxable  under  subsection  (&)  of  section  five.  The  income  received 
by  the  estates  of  such  deceased  persons  shall  be  subject  to  all  the 
taxes  imposed  by  this  chapter  to  the  extent  that  the  persons  to  whom 
such  income  is  payable,  or  for  whose  benefit  it  is  accumulated,  are 

3G.  L.  c.  59,  §5,  cl.  17,  supra,  page  209. 


Taxation  of  Incomes  469 

G.  L.  c.  62,  §  9] 

inhabitants  of  the  commonwealth.  All  taxes  under  this  section  shall 
be  assessed  to  the  executor  or  administrator,  and  before  the  appoint- 
ment of  an  executor  or  administrator  said  taxes  shall  be  assessed  in 
general  terms  to  the  estate  of  the  deceased,  and  the  executor  or  ad- 
ministrator subsequently  appointed  shall  be  liable  for  the  tax  so  as- 
sessed as  though  it  were  assessed  to  him.  No  person  shall  be  taxed 
under  this  chapter  for  income  received  from  any  executor  or  admin- 
istrator which  income  has  itself  been  taxed  under  this  section.  If  any 
income,  other  than  income  received  by  him  or  income  of  his  decedent 
with  respect  to  which  he  is  required  by  this  chapter  to  make  a  return, 
is  taxable  under  this  chapter  to  an  executor  or  administrator  or  to  the 
estate  of  his  decedent,  he  shall  not  be  obliged  to  pay  a  tax  under  this 
chapter  thereon  unless  it  is  assessed  within  one  year  after  his  giving 
bond ;  provided,  that  he  has  given  due  notice  of  his  appointment  and 
has  filed  his  inventory  within  nine  months  thereafter.  If  the  inven- 
tory shall  not  have  been  filed  within  said  nine  months,  the  executor 
or  administrator  shall  be  obliged  to'  pay  any  taxes  that  may  be  as- 
sessed under  this  chapter  within  three  months  after  the  filing  of 
the  inventory. 

With  respect  to  income  received  from  the  first  day  of  Janu- 
ary to  the  time  of  his  death  by  a  person  who  died  within  the 
taxable  year,  there  has  been  some  confusion  in  the  administra- 
tion of  the  law.  The  original  income  tax  act  provided  that 
"the  income  received  by  persons  since  deceased  shall  be  taxed 
to  their  estates"  and  the  commissioner,  in  accordance  with  what 
is  believed  to  have  been  the  intent  of  the  legislature,  construed 
the  act  as  requiring  that  all  taxable  income  received  by  a  de- 
ceased person  between  the  first  day  of  January  and  the  date  of 
his  death  should  be  taxable  to  his  estate.  It  is  to  be  noted  that 
this  construction  was  contrary  to  the  general  theory  of  the  law, 
which  is  that  the  tax  is  a  tax  of  the  year  in  which  the  return 
is  filed,  measured  by  the  ability  of  the  taxpayer  to  pay  as  evi- 
denced by  his  income  in  the  preceding  year ; x  and  the  court  held 
that  the  words  "since  deceased"  in  the  statute  meant  since  Jan- 
uary first,  1917,  1917  being  the  first  year  that  returns  were  re- 
quired, and  that  in  any  event  income  of  a  person  who  died  in 
1916  could  not  be  taxed.2    This  decision  was  construed  as  denying 

1  See  G.  L.  c.  62,  §25,  infra,  page  483. 

*  Faulkner  v.  Tax  Commissioner,  229  Mass.  120  (1918). 


470  Taxation  in  Massachusetts 

[G.  L.  c.  62,  §§  9,  10 

the  validity  of  any  tax  on  the  income  of  a  deceased  person 
received  prior  to  his  death;  but  in  1919  the  statute  was  amended 
so  as  to  authorize  the  taxation  of  all  income  received  by  a  de- 
ceased person  prior  to  his  death  taxable  under  this  chapter,  ex- 
cept business  income.3 

With  respect  to  income  received  by  an  executor  or  admin- 
istrator accruing  in  the  interval  between  the  death  of  the  de- 
cedent and  the  distribution  of  his  estate,  the  executor  or  admin- 
istrator is  taxable  except  with  respect  to  so  much  of  such  income 
as  is  payable  to  or  is  accumulated  for  the  benefit  of  persons  who 
are  not  residents  of  this  commonwealth,  or,  in  the  case  of  income 
from  intangibles,  for  persons  who  would  not  be  taxable  if  they 
received  the  income  directly  by  reason  of  the  smallness  of  its 
amount  and  the  smallness  of  their  income  from  all  sources.  An 
executor  or  administrator  is  accordingly  obliged  to  include  in  his 
return  of  income  a  statement  of  the  respective  domiciles  of  the 
beneficiaries  and  of  their  proportionate  shares  in  the  income; 
and  beneficiaries'  claims  of  exemption  based  upon  the  smallness 
of  their  income  may  be  included  in  such  return.4 

Estates  Held  in  Trust 

Section  10.  The  income  received  by  estates  held  in  trust  by  trus- 
tees, any  one  of  whom  is  an  inhabitant  of  the  commonwealth  or  has 
derived  his  appointment  from  a  court  of  the  commonwealth,  shall  be 
subject  to  the  taxes  assessed  by  this  chapter  to  the  extent  that  the 
persons  to  whom  the  income  from  the  trust  is  payable,  or  for  whose 
benefit  it  is  accumulated,  are  inhabitants  of  the  commonwealth.  In- 
come accumulated  in  trust  for  the  benefit  of  unborn  or  unascertained 
persons  or  persons  with  contingent  interests  shall  be  taxed  as  if  ac- 
cumulated for  the  benefit  of  inhabitants  of  the  commonwealth.  In 
the  computation  of  the  tax,  the  trustees,  in  addition  to  the  deduction 
on  account  of  interest  paid,  allowed  under  section  two,  shall  be  en- 
titled to  the  following  deductions  from  income  taxable  under  section 
one,  and  under  paragraphs  (a)  and  (c)  of  section  five,  before  the 
taxable  income  of  the  beneficiaries  shall  finally  be  determined: 

(a)  Such  proportion  of  the  following  items  as  the  amounts  of  in- 
come taxable  under  section  one  and  subsections  (a)  and  (c)  of  sec- 
tion five  together  bear  to  the  total  income  received  by  the  trustee 

"St.  1919,  c.  136,  §1. 

4G.  L.  c.  62,  §12,  infra,  page  474. 


Taxation  of  Incomes  471 

G.  L.  c.  62,  §  10] 

from  all  sources,  exclusive  of  income  taxable  under  subsection  (&)  of 
section  five,  to  wit :  ( 1 )  all  taxes  paid  within  the  year  to  the  United 
States  or  any  other  nation  or  to  any  state,  county,  city,  town  or  dis- 
trict, except  taxes  assessed  on  real  estate  or  tangible  personal  prop- 
erty, inheritance  or  other  taxes  assessed  upon  the  transfer  of  estates 
of  deceased  persons,  Massachusetts  income  taxes  and  assessments  for 
betterments;  (2)  amounts  paid  within  the  year  for  rental  of  safe 
deposit  boxes;  and  (3)  amounts  paid  within  the  year  for  premiums 
on  surety  bonds  of  the  trustee. 

(b)  All  amounts  paid  on  account  of  fees  or  compensation  for 
services  of  the  trustee,  to  an  amount  not  exceeding  five  per  cent  of  the 
gross  income  taxable  under  section  one,  and  subsections  (a)  and  (c) 
of  section  five. 

(c)  All  taxes  paid  within  the  year  to  the  commonwealth  and  as- 
sessed under  this  chapter  on  income  taxable  under  section  one  and 
subsections  (a)  and  (c)  of  section  five,  on  account  of  beneficiaries 
who  still  remain  inhabitants  of  the  commonwealth. 

(d)  The  trustees  may  also  deduct  from  the  income  taxable  under 
section  one  a  proper  amount  for  the  amortization,  according  to  any 
approved  method,  of  premiums  paid  upon  bonds  owned  by  the  estate 
the  income  of  which  is  taxable  under  said  section  one. 

In  the  enactment  of  the  income  tax  the  legislature  deter- 
mined to  commit  this  commonwealth  to  the  enlightened  prin- 
ciple that  a  state  should  not  use  its  constitutional  powers  to  their 
utmost  limit  by  taxing  trust  property  to  the  trustee  if  he  is  a 
resident,  regardless  of  the  domicile  of  the  beneficiary,  and  to 
the  beneficiary  if  he  is  a  resident  and  the  trustee  a  non-resident,1 
but  should  confine  itself  to  a  single  and  consistent  rule  for  the 
taxation  of  trust  property.  Accordingly  it  was  determined  that 
the  taxability  of  trust  property  should  depend  wholly  upon  the 
domicile  of  the  beneficiary,  although  for  purposes  of  convenience 
the  tax  was  assessed  upon  the  trustee  if  he  was  within  the  juris- 
diction of  the  commonwealth.2     In  this  respect  a  change  was 

1  As  to  the  constitutionality  of  the  double  taxation  of  trust  property  see 
supra,  Part  I,  §33. 

*  The  trustee  is  the  logical  person  to  make  the  return  and  pay  the  tax  upon 
trust  property,  as  he  has  the  information  and  the  funds  available.  The  reason 
that  the  beneficiary  includes  trust  property  in  his  return  and  pays  the  tax  there- 
on under  the  federal  income  tax  law  is  that  the  tax  is  graded  in  proportion  to 
the  income  of  the  taxpayer  from  all  sources,  and  the  trustee,  having  in  most 
cases  no  knowledge  of  his  beneficiary's  other  income,  would  not  know  how  much 
to  pay. 


472  Taxation  in  Massachusetts 

[G.  L.  c.  62,  §  10 

made  from  the  law  as  it  previously  existed,  as  under  the  former 
provisions  a  resident  trustee  was  taxed  without  regard  to  the 
domicile  of  the  beneficiary,  and  a  resident  beneficiary  of  a  non- 
resident trustee  was  also  taxed,  unless  the  trust  property  was 
legally  taxed  to  a  trustee  under  a  testamentary  trust  in  another 
state.3 

Under  the  present  law,  it  is  necessary  for  the  trustee  to  set 
forth  in  his  return  the  domicile  of  each  beneficiary  and  the  pro- 
portionate part  of  the  income  payable  to  each.  The  domicile  of 
each  beneficiary  is  determined  as  of  January  first  of  the  year 
in  which  the  return  is  filed,  unless  a  non-resident  beneficiary  be- 
comes a  resident  before  June  thirtieth  in  such  year,  in  which 
case  the  commissioner  has  ruled  that  a  tax  is  due  on  the  income 
payable  to  such  beneficiary ;  and  if  he  makes  such  change  of  domi- 
cile after  the  trustee  has  filed  his  return,  the  trustee  is  required 
to  file  a  supplementary  return  setting  forth  the  facts. 

Apart  from  the  exemption  based  upon  the  domicile  of  the 
beneficiaries  and  the  deductions  set  forth  in  the  foregoing  sec- 
tion of  the  statute,  the  trustee  is  taxable  upon  all  money  or 
other  property  received  by  him  which  would  be  taxable  as  in- 
come to  a  person  who  received  it  in  his  own  right,  without  re- 
gard to  the  fact  that  the  money  received  is  not  distributed  but 
is  allowed  to  accumulate,  or  that  for  the  purpose  of  the  trust 
it  is  deemed  principal  and  not  income.  The  breadth  of  the  con- 
struction given  to  the  world  "income"  in  the  Forty-fourth 
Amendment  is  illustrated  by  the  numerous  classes  of  receipts 
which  are  considered  capital  and  not  income  as  between  life 
tenant  and  remainderman,  but  are  considered  income  for  pur- 
poses of  taxation.4  The  fact  that  money  is  received  by  a  trustee 
rather  than  by  an  individual  investor,  and  must  be  treated  by 
him  as  capital,  does  not  affect  the  right  of  the  commonwealth  to 
tax  it  as  income. 

Trusts  for  charitable  purposes  are  subject  to  the  tax,  unless 
the   beneficiary   comes  within  ,one   of  the   classes   specifically 

3St.  1909,  c.  490,  Part  I,  §23,  cl.  5;  and  see  Hunt  v.  Perry,  165  Mass. 
287  (1896). 

4  Thus  profits  and  gains  arising  from  the  increase  in  value  of  investments 
and  realized  by  sale,  money  derived  from  the  sale  of  "rights,"  and  stock  dividends, 
are  considered  capital  as  between  life  tenant  and  remainderman  but  are  income 
for  purposes  of  taxation.  Tax  Commissioner  v.  Putnam,  227  Mass.  522  (1917). 
The  rule  as  to  stock  dividends  was  subsequently  changed  by  statute.  See  G.  L. 
c.  62,  §1   (b),  supra,  page  441. 


Taxation  of  Incomes  473 

G.  L.  c.  62,  §§  10, 11] 

exempted  from  taxation  by  existing  law/'  or  unless  the  benefi- 
ciaries of  the  charity  are  not  inhabitants  of  the  commonwealth. 
If  some  are  residents  and  others  non-residents  the  tax  must  be 
apportioned  accordingly. 

The  object  of  the  provision  in  regard  to  deductions  is  to  per- 
mit the  trustee  to  claim  as  a  deduction  the  same  proportion  of 
the  expenses  of  the  trust  which  are  chargeable  to  income  under 
the  established  probate  practice  that  the  taxable  income  bears 
to  the  whole  income  of  the  trust,  so  far  as  the  same  is  derived 
from  invested  capital  and  not  from  a  business  carried  on  by  the 
trustee.  • 

Income  from  Non-Resident  Trustees 

Section  11.  If  an  inhabitant  of  the  commonwealth  receives  in- 
come from  one  or  more  trustees,  none  of  whom  is  an  inhabitant  of 
the  commonwealth  or  has  derived  his  appointment-  from  a  court  of 
the  commonwealth,  such  income  shall  be  subject  to  the  taxes  imposed 
by  this  chapter,  according  to  the  nature  of  the  income  received  by  the 
trustees. 

The  foregoing  section  carries  out  the  principle  explained 
under  the  preceding  section,  by  which  the  taxability  of  trust 
property  is  made  to  depend  upon  the  domicile  of  the  beneficiary. 
It  has  been  held  that  although  the  legal  title  to  trust  property 
is  in  the  trustee,  and  the  situs  of  intangible  property  is  ordinarily 
at  the  domicile  of  the  owner,  the  beneficiary  has  an  interest  in 
intangible  property  held  in  trust  which  may  be  taxed  at  his 
domicile.1  The  beneficiary  does  not  necessarily  have  any  means 
of  knowing  the  character  of  the  trust  property  or  whether  it 
is  taxable,  but  the  commissioner,  doubtless  believing  that  the 
beneficiary  can  find  out  if  he  really  wants  to,  has  ruled  that  if 
a  resident  beneficiary  cannot  secure  from  a  non-resident  trustee 
information  as  to  the  nature  of  the  income  received,  so  that  it 
may  be  properly  segregated  for  taxation,  the  whole  shall  be 
treated  as  derived  from  taxable  interest  and  dividends,  and 
taxed  at  the  six  per  cent  rate. 

In  the  original  income  tax  act,  it  was  intended  that  all 
taxable   income    received    by    a    resident    beneficiary    from    a 

•See  Watson  v.  Boston,  209  Mass.  18   (1911). 

lMaguire  v.  Tax  Commissioner,  230  Mass.  503  (1918),  affirmed,  Maguire  v. 
Trefry,  253  U.  S.  12  (1920). 


474  Taxation  in  Massachusetts 

[G.  L.  c.  62,  §§  11,12 
non-resident  trustee  should  be  taxed;  but  as  elsewhere  in  the 
statute  it  was  provided  that  income  derived  from  property 
exempt  from  taxation  under  existing  law  should  not  be  taxed, 
and  the  existing  law  exempted  property  held  by  a  non-resident 
trustee  for  a  resident  beneficiary  under  a  testamentary  trust  if 
legally  taxed  in  another  state,  it  was  held  that  such  exemption 
applied  under  the  income  tax  act.2  The  statute  was  later 
amended  to  carry  into  effect  the  original  intent  of  the  legislature.3 

Claim  of  Exemption  for  Beneficiary 

Section  12.  A  trustee  may,  at  the  request  of  any  beneficiary, 
claim  the  benefit  of  the  exemption  provided  by  subsection  (a)  of 
section  eight  for  each  person  to  whom  the  income  from  the  trust  is 
payable,  or  for  whose  benefit  it  is  accumulated,  and  an  inhabitant  of 
this  commonwealth  receiving  income  from  one  or  more  trustees,  none 
of  whom  is  an  inhabitant  of  this  commonwealth  or  has  derived  his 
appointment  from  a  court  of  this  commonwealth,  may  also  claim  the 
benefit  of  such  exemption ;  provided,  that  the  commissioner  is  satisfied 
by  an  affidavit  from  the  beneficiary  claiming  exemption,  or  for  whose 
benefit  the  same  is  claimed,  or  otherwise,  that  such  beneficiary  is  not 
allowed  in  all  trusts  or  estates  under  which  he  may  be  a  beneficiary, 
and  on  account  of  all  income  on  which  he  is  liable  to  taxation  under 
this  chapter,  more  than  the  total  amount  of  exemption  to  which  he  is 
entitled  under  said  subsection  (a). 

Since  the  exemption  depends  upon  the  total  income  of  the 
beneficiary,  or  on  his  total  business  income,  which  the  fiduciary 
would  have  no  means  of  knowing,  although  the  fiduciary  is  to 
pay  the  tax,  he  cannot  well  claim  the  exemption  until  he  is  as- 
sured that  the  beneficiary  had  no  other  income  which  would 
deprive  him  of  his  exemption.   . 

A  beneficiary  who  has  no  taxable  income  except  from  a 
fiduciary  who  is  taxable  under  this  act  is  not  taxable  himself, 
although  if  such  income  exceeds  two  thousand  dollars  he  must 
file  a  return  under  the  provisions  of  section  twenty-two. 
The  return,  however,  need  not  set  out  the  income  thus  re- 
ceived. 

'Maguire  v.  Tax  Commissioner,  230  Mass.  503   (1918). 
"St.  1918,  c.  207. 


Taxation  of  Incomes  475 

G.  L.  c.  62,  §§  13,  14] 

Applications  of  Foregoing  Provisions  to  Other  Fiduciaries 

Section  13.  Sections  ten  to  twelve,  inclusive,  shall,  so  far  as  apt, 
apply  to  executors,  administrators,  guardians,  conservators,  trustees 
in  bankruptcy,  receivers  and  assignees  for  the  benefit  of  creditors,  to 
the  income  received  by  them  and  to  their  beneficiaries;  except  that 
clauses  (a),  (&),  (c)  and  (d)  of.  section  ten  authorizing  certain  deduc- 
tions, shall  apply  only  to  trustees  and  guardians. 

The  provisions  as  to  the  taxation  of  trust  property  are  by  this 
section  extended  to  fiduciaries  other  than  trustees  and  it  has 
been  ruled  by  the  commissioner  that  the  section  applies  to  re- 
ceivers of  absentees  and  to  natural  guardians  of  minors.  Guar- 
dians and  conservators  and  receivers  of  absentees  may  claim  on 
behalf  of  the  beneficiary  any  exemption  to  which  he  is  entitled. 
A  public  administrator  of  the  estate  of  a  deceased  person  leav- 
ing no  known  heirs  need  make  no  return  of  income;  and  the 
trustee,  assignee  or  receiver  of  a  corporation  or  of  a  trust  with 
transferable  shares  which  has  not  filed  the  agreement  to  pay 
taxes,  is  not  subject  to  the  income  tax;  but  the  receiver  of  a 
foreign  corporation  who  has  been  appointed  by  a  court  of  this 
commonwealth  to  hold  a  fund  for  the  benefit  of  Massachusetts 
creditors  is  subject  to  the  income  tax.  Receivers  and  trustees 
in  bankruptcy  of  individual  debtors  are  taxable  on  income  to  the 
extent  that  such  income  has  accrued  for  the  benefit  of  Massa- 
chusetts creditors,  the  creditors  being  deemed  the  beneficiaries 
of  the  trust. 

Corporations  Acting  as  Trustees 

Section  14.  Corporations  acting  as  trustee  or  in  any  other  fidu- 
ciary capacity  shall, 'with  respect  to  the  income  received  by  them  in 
that  capacity,  be  subject  to  this  chapter  in  the  same  manner  and 
under  the  same  conditions  as  individual  inhabitants  of  the  common- 
wealth acting  in  similar  capacities,  except  that  no  such  corporation 
shall  be  taxed  on  account  of  any  property  the  income  of  which  would 
be  taxable  under  section  one  if  received  by  an  individual  inhabitant, 
or  an  account  of  the  income  derived  from  such  property,  if  such  prop- 
erty is  held  by  such  corporation  as  mortgagee  or  pledgee  to  secure  the 
payment  of  bonds,  notes  or  other  evidences  of  indebtedness  the  inter- 
est   on    which    is    taxable    under    section    one    to    such    individual 


476  Taxation  in  Massachusetts 

[G.  L.  c.  62,  §§  14,  17 
inhabitants  of  the  commonwealth  as  receive  it,  or  the  principal  of 
which  is  exempt  from  taxation  under  laws  other  than  this  chapter. 

Section  15.  Every  corporation  liable  to  taxation  under  the  pre- 
ceding section  shall  make  the  returns,  and  be  subject  to  the  penalties, 
prescribed  by  this  chapter. 

This  is  the  only  provision  for  the  taxation  of  corporations 
in  the  chapter  and  of  course  this  provision  does  not  affect  prop- 
erty in  which  a  corporation  has  a  beneficial  interest,  but  merely 
puts  trust  companies  and  other  corporations  acting  in  a  fiduciary 
capacity  upon  the  same  basis  as  individual  trustees  with  respect 
to  the  taxation  of  trust  property.  Under  the  original  income 
tax  act  this  section  applied  only  to  corporations  authorized  by  law 
to  act  as  trustee,  but  in  the  consolidation  of  the  General  Laws 
it  was  amended  to  include  all  corporations  acting  as  trustee,  so 
that  a  corporation  acting  as  trustee  without  authority  would  not 
on  that  account  escape  taxation.1 

Settlement  of  Taxes  on  Fiduciaries 

Section  16.  For  the  purpose  of  facilitating  the  settlement  and 
distribution  of  estates  held  by  trustees  and  the  other  fiduciaries 
named  in  section  thirteen,  the  commissioner,  with  the  approval  of  the 
attorney  general,  may  on  behalf  of  the  commonwealth  agree  on  the 
amount  of  taxes  at  any  time  due  or  to  become  due  from  such  estates 
under  this  chapter,  and  payment  in  accordance  with  such  agreement 
shall  be  full  satisfaction  of  the  taxes  to  which  the  agreement  relates. 

Partnerships 

Section  17.  Partnerships  having  a  usual  place  of  business  in  the 
commonwealth,  any  member  of  which  is  an  inhabitant  thereof,  shall 
be  subject  to  the  taxes  imposed  by  this  chapter.  If  any  of  the  mem- 
bers of  the  partnership  are  not  inhabitants  of  the  commonwealth,  only 
so  much  of  the  income  thereof  as  is  proportionate  to  the  aggregate 
interest  of  the  partners  who  are  inhabitants  of  the  commonwealth  in 
the  profits  of  the  partnership  shall  be  taxed.  The  tax  shall  be  as- 
sessed on  such  a  partnership  by  the  name  under  which  it  does  busi- 
ness, and  the  partners  shall  not  be  taxed  with  respect  to  the  income 
derived  by  them  from  such  a  partnership. 

•St.  1918,  c.  257,  §67. 


Taxation  of  Incomes  477 

G.L.c.62,  §17] 

This  provision  differs  from  the  federal  income  tax  law  in 
that  when  a  partnership  has  a  place  of  business  in  this  common- 
wealth and  so  can  be  subjected  to  its  laws,  the  partnership  is 
treated  as  an  entity  and  taxed  on  its  income  and  the  partners 
do  not  pay  a  tax  on  their  income  from  the  partnership.  The 
taxability  of  the  income  of  a  partnership  does  not,  however, 
depend  upon  the  location  of  its  place  or  places  of  business  but 
upon  the  domicile  of  the  partners,  and  a  partnership  composed 
of  non-residents  may  have  its  place  of  business  in  this  common- 
wealth without  paying  any  tax  here  except  upon  its  tangible 
property,  just  as  an  individual  non-resident  may. 

A  partnership  is  subject  to  the  different  taxes  imposed  under 
this  chapter  in  the  same  manner  as  an  individual,  and  if  it 
receives  income  from  taxable  intangibles  or  makes  gains  from 
the  sale  of  intangible  property,  it  is  taxable  on  such  income  at 
six  per  cent  or  three  per  cent  respectively.  If  the  partnership  is 
dissolved  during  the  year,  the  partners  must  include  all  partner- 
ship income  received  up  to  the  time  of  dissolution,  separating  the 
income  from  taxable  intangibles  from  gain  from  the  sale  of 
intangibles  and  from  business  income. 

Loans  by  a  partner  to  a  partnership  are  recognized  as  valid ; 
the  interest  thereon  may  be  deducted  as  a  partnership  expense 
and  is  taxable  to  the  partner  receiving  it  in  the  same  manner  as 
other  interest;  whereas  so-called  "partner's  capital,"  contributed 
under  an  arrangement  by  which  each  partner  is  to  receive  inter- 
est on  the  capital  invested  by  him  in  the  business  before  any 
profits  are  divided,  is  not  considered  a  loan,  and  the  payment 
of  interest  thereon  is  treated  as  a  distribution  of  profits. 

Clubs,  associations,  labor  unions  and  similar  bodies  and  fra- 
ternal, benevolent  or  charitable  organizations  which  are  not  in- 
corporated and  which  are  not  exempted  from  taxation  by  any 
provision  of  law,  are  treated  as  partnerships  by  the  income  tax 
division  and  taxed  as  such  on  what  income  they  may  have  from 
taxable  securities  or  otherwise,  with  a  proportionate  deduction  on 
account  of  members  who  are  not  residents  of  Massachusetts. 
While  this  ruling  may  not  be  technically  correct  it  is  not  likely 
to  be  questioned  because  of  the  inconvenience  which  would  re- 
sult if  it  were  overthrown,  and  each  member  taxed  individually 
for  his  proportion  of  the  income  of  the  association. 

A  partnership   having  a  usual  place  of  business   in   this 


478  Taxation  in  Massachusetts 

[G.  L.  c.  62,  §§  17,  18 

commonwealth  at  any  time  between  January  1  and  June  30  in 
any  year,  if  its  total  income  from  all  sources  in  the  preceding  year 
was  in  excess  of  two  thousand  dollars,  or  if  it  received  any  income 
in  that  year  from  taxable  intangibles  or  profit  for  the  year  in 
buying  and  selling  intangible  property,  is  bound  to  file  a  return. 


Establishment  of  Partners'  Exemptions 

Section  18.  A  partnership,  in  computing  its  taxable  income, 
may  deduct  at  the  request  of  any  partner  the  whole  or  any  part  of  the 
amount  of  the  exemptions  to  which  such  partner  may  be  entitled 
under  sections  five  and  eight  and  of  the  deduction  for  family  to  which 
he  may  be  entitled  under  clause  (h)  of  section  six;  provided  the  com- 
missioner is  satisfied  by  an  affidavit  from  the  partner  for  whose 
benefit  any  such  exemption  or  deduction  is  claimed,  or  otherwise,  that 
such  partner  is  not  allowed,  in  all  partnerships  in  which  he  may  be  a 
partner  and  on  account  of  all  income  on  which  he  is  liable  to  taxation 
under  this  chapter,  more  than  the  total  amount  of  such  exemptions 
and  deductions  to  which  he  is  entitled.  Each  amount  so  deducted 
shall  be  set  forth  in  the  return  of  the  partnership,  and  the  partner 
requesting  the  same  shall  be  allowed  no  further  exemption  or  deduc- 
tion on  account  thereof.  The  commissioner,  in  his  discretion,  may 
excuse  a  partnership  which  has  a  place  of  business  in  the  common- 
wealth from  filing  a  return  under  this  chapter,  if  its  principal  place 
of  business  is  not  within  the  commonwealth,  and  in  such  case  may 
require  the  partners-  who  are  inhabitants  of  the  commonwealth  to 
include  in  their  individual  returns  their  shares  of  the  partnership  in- 
come, and  may  assess  to  each  partner  individually  a  tax  on  his  share. 

No  partnership  can  claim  on  account  of  any  partner  a  greater 
exemption  than  such  partner's  share  of  the  income.  Thus,  if  the 
total  net  business  income  of  a  partnership  composed  of  three 
unmarried  men  without  dependent  parents  and  without  other 
income  was  $5000,  if  each  partner  had  an  equal  share  in  the 
business  the  whole  income  of  the  partnership  would  be  exempt; 
but  if  one  had  a  three-fifths  interest  and  the  others  a  one-fifth 
interest  apiece,  the  partnership  would  be  taxable  on  $1000. 

A  partner  having  a  business  income  apart  from  the  partner- 
ship may  apportion  his  exemption  between  his  private  income 
and  the  income  of  the  partnership,  as  he  deems  advisable. 


Taxation  of  Incomes  479 

G.L.c.  62,  §§19-21] 

Resident  Members  of  Partnerships  Having  No  Place  of 
Business  in  Massachusetts 

Section  19.  An  inhabitant  of  the  commonwealth  who  is  a  mem- 
ber of  a  partnership  having  no  usual  place  of  business  in  the  com- 
monwealth, who  receives  income  from  such  partnership  derived  from 
such  a  source  that  it  would  be  taxable  if  received  directly  by  such 
partner,  shall  as  to  such  income  be  subject  to  the  taxes  imposed  by 
this  chapter. 

Under  this  statute  a  resident  of  this  commonwealth  who 
is  a  member  of  a  partnership  which  has  no  usual  place  of  business 
in  this  commonwealth  is  obliged  to  include  the  income  which 
he  receives  from  the  partnership  in  his  individual  return,  sepa- 
rating the  income  from  taxable  intangibles  from  gains  from  the 
sale  of  intangibles  and  from  business  income  but  not  being 
obliged  to  give  the  details  as  to  business  income  which  a  partner- 
ship itself  is  obliged  to  return.  In  some  cases  the  commissioner 
allows  a  partnership  having  a  usual  but  not  its  principal  place 
of  business  in  this  commonwealth  to  file  no  return,  on  condition 
that  the  resident  members  of  the  partnership  include  such  income 
in  their  individual  returns. 

Procedural  Provisions  Applicable  to  Partnerships 

Section  20.  The  provisions  of  this  chapter  in  respect  to  the  filing 
of  returns,  and  the  assessment,  abatement  and  collection  of  taxes,  and 
to  notices  concerning  the  same,  shall  apply  to  partnerships  subject 
to  taxation  under  this  chapter. 

Partnerships  with  Transferable  Shares 

Section  21.  Sections  seventeen  to  twenty,  inclusive,  shall  not 
apply  to  partnerships,  associations  or  trusts,  the  beneficial  interest 
in  which  is  represented  by  transferable  shares,  and  nothing  in  said 
sections  shall  affect  other  provisions  of  this  chapter  so  far  as  the  same 
relate  to  such  partnerships,  associations  or  trusts,  the  beneficial  inter- 
est in  which  is  represented  by  transferable  shares. 

The  distinction  is  carefully  drawn  throughout  the  chapter 
between  ordinary  partnerships  on  the  one  hand,  which  involve 


480  Taxation  in  Massachusetts 

[G.  L.  c.  62,  §q  21,  22 

personal  relations  between  the  partners,  so  that  one  partner  can- 
not transfer  his  interest  in  the  partnership  to  a  stranger  to  the 
agreement  without  the  consent  of  his  associates,  and  unincor- 
porated associations,  the  shares  in  which  are  transferable  in  the 
same  manner  as  stock  in  corporations,  but  which  are  technically 
partnerships  when  the  control  of  the  affairs  of  the  association 
is  in  the  hands  of  the  shareholders  rather  than  of  the  trustee 
who  holds  the  legal  title  to  the  property  of  the  association. 
The  taxation  of  such  partnerships  is  governed  by  section  one, 
paragraph  (c),  (d)  and  (e)  of  this  chapter. 

The  mere  fact  that  shares  in  an  unincorporated  association 
are  subject  to  a  restriction  requiring  the  approval  of  the  associa- 
tion, or  of  a  third  party,  before  they  can  be  transferred,  or  re- 
quiring that  they  be  first  offered  for  sale  to  the  association,  does 
not  necessarily  establish  the  fact  that  the  shares  are  not  trans- 
ferable, within  the  meaning  of  the  statute. 

Returns  of  Income 

Section  22.  Every  individual  inhabitant  of  the  commonwealth, 
including  every  partnership,  association  or  trust,  whose  annual  in- 
come from  all  sources  exceeds  two  thousand  dollars  shall  annually 
make  a  return  of  his  entire  income,  except  income  derived  (a)  from 
real  estate,  (&)  from  dividends  exempt  from  taxation  under  section 
one,  (c)  from  interest  upon  bonds  or  other  obligations  of  the  United 
States,  (d)  from  interest  upon  such  bonds,  notes  and  certificates  of 
indebtedness  of  the  commonwealth  and  political  subdivisions  thereof 
as  are  exempt  from  taxation  under  clause  twenty -fifth  of  section  five 
of  chapter  fifty-nine,  (e)  from  loans  secured  exclusively  by  mortgage 
of  real  estate,  taxable  as  real  estate,  situated  in  the  commonwealth,  to 
an  amount  not  exceeding  the  assessed  value  of  the  mortgaged  real 
estate  less  the  amount  of  all  prior  mortgages,  and  (/)  from  wages  or 
salaries  received  from  the  United  States.  Every  other  individual 
inhabitant,  including  every  partnership,  association  or  trust,  who 
receives  income  taxable  under  section  one  or  subsection  (a)  or  (c)  of 
section  five  shall  make  an  annual  return  of  such  taxable  income. 

This  section  not  only  requires  a  return  from  every  person 
actually  taxable  under  any  of  the  provisions  of  the  chapter  and 
from  every  person  who  would  be  taxable  but  for  the  fact  that 
his  total  income  is  under  six  hundred  dollars,  but  also  requires 


Taxation  of  Incomes  481 

G.  L.  c.  62,  §  22] 

a  return  from  every  person  whose  total  income  is  over  two 
thousand  dollars  even  if  none  of  such  income  is  taxable,  al- 
though no  one  (except  for  the  purpose  of  certain  exemptions  and 
deductions)  is  required  to  disclose  the  amount  of  his  income  not 
taxed  by  this  act.  The  object  is  a  practical  one;  namely  to  com- 
pel every  person  whose  standard  of  living  indicates  an  income  of 
two  thousand  dollars  or  more  to  put  himself  on  record  under 
oath  as  not  having  taxable  income  if  he  has  none,  rather  than 
to  leave  to  the  public  authorities  the  burden  of  guessing  whether 
a  man  in  obviously  comfortable  circumstances  who  failed  to  file 
a  return  had  in  fact  no  taxable  income  or  was  evading  taxes 
which  he  should  properly  pay.  The  sources  of  income  which 
need  not  be  returned  are  enumerated  in  the  statute  rather  than 
those  which  must  be,  and  consist  of  those  which  are  clearly  not 
taxable;  the  object  being  to  prevent  the  taxpayer  from  always 
giving  himself  the  benefit  of  any  doubt  and  omitting  from  his 
return  all  income  the  taxability  of  which  might  be  questionable. 
By  inadvertence  interest  upon  savings  deposits  was  omitted  from 
the  list  of  income  which  need  not  be  returned,  but  the  commis- 
sioner, by  virtue  of  the  latitude  given  him  in  preparing  returns, 
has  not  required  a  statement  of  such  income. 

Income  received  by  beneficiaries  from  fiduciaries  who  are 
bound  to  make  a  return  under  this  act,  and  income  received  by 
a  partner  from  a  partnership  of  which  he  is  a  member,  are  not 
mentioned  in  the  list  of  classes  of  income  upon  which  a  return 
need  not  be  made.  In  practice,  however,  the  commissioner  does 
not  require  a  return  of  such  income,  although  he  requires  the 
taxpayer  to  state  whether  he  has  received  any  such  income  and 
if  he  answers  in  the  affirmative  to  designate  the  fiduciary  or  part- 
nership from  which  the  income  was  received,  so  that  the  commis- 
sioner can  ascertain  whether  such  fiduciary  or  partnership  has 
filed  a  return. 

The  statute  contemplates  the  signing  of  a  return  by  the  tax- 
payer himself  and  not  by  an  agent  or  attorney.  Provision  is  made 
in  section  twenty-nine  for  an  extension  of  the  time  for  filing  a 
return  in  case  of  sickness,  absence  or  other  disability.  In  extreme 
cases,  however,  in  which  it  will  be  obviously  impossible  for  the 
taxpayer  to  personally  sign  a  return  within  a  long  and  indefinite 
period,  the  commissioner  will  accept  a  return  signed  by  an  agent 
or  attorney. 


482  Taxation  in  Massachusetts 

[G.  L.  c.  62,  §§  22-24 

One  does  not  concede  that  he  is  taxable  by  filing  a  return. 
In  a  doubtful  case  a  return  should  be  filed ;  otherwise  the  penal- 
ties provided  by  law  would  be  incurred  if  the  final  decision  of 
the  contested  question  should  be  adverse.  The  person  filing  the 
return  should,  however,  set  out  in  his  return  his  contention,  and 
the  grounds  upon  which  it  is  based,  whether  he  denies  his  liabil- 
ity to  the  tax  on  the  ground  that  he  is  not  an  inhabitant  or  on  the 
ground  that  his  income  does  not  come  within  the  provisions  of 
the  law. 

Fiduciaries'  Returns 

Section  23.  Every  executor,  administrator,  trustee,  guardian, 
conservator,  trustee  in  bankruptcy,  assignee  for  the  benefit  of  credi- 
tors and  receiver,  other  than  a  receiver  of  a  domestic  corporation,  and 
every  other  person  receiving  income  taxable  under  this  chapter,  shall 
make  an  annual  return  of  his  taxable  income  as  provided  in  this 
chapter. 

In  the  case  of  a  resident  of  Massachusetts  who  died  during 
a  taxable  year  after  having  received  taxable  income,  his  executor 
or  administrator  must  file  a  return  of  all  income  which  would 
have  been  taxable  to  the  decedent  if  he  had  lived  (except  income 
from  professions,  employments,  trade  or  business  received  by 
the  decedent  during  the  taxable  year  prior  to  his  death)  to  which 
he  is  required  to  make  oath  that  it  is  true  and  complete  to  the 
best  of  his  knowledge  and  belief.  This  return  must  be  filed  be- 
fore the  first  day  of  March  in  the  following  year,  unless  the  ex- 
ecutor or  administrator  was  not  appointed  until  after  the  first 
day  of  February  in  such  year,  in  which  case  it  must  be  filed 
within  sixty  days  after  his  appointment.  This  return  is.  in  ad- 
dition to  and  distinct  from  the  return  which  the  executor  or 
administrator  is  required  to  file  with  respect  to  taxable  income 
received  after  his  appointment. 

No  return  is  required  of  an  assignee,  trustee  in  bankruptcy 
or  receiver  of  a  corporation,  except  in  the  case  of  a  receiver  of 
a  foreign  corporation  holding  a  fund  for  the  benefit  of  Massachu- 
setts creditors,  since  such  fiduciaries  are  not  subject  to  the  tax. 

Further  Provisions  Respecting  Returns 
Section  24.  Returns  under  the  two  preceding  sections  shall  be  on 
oath,  and  shall  be  filed  with  the  income  tax  assessor  for  the  district 


Taxation  of  Incomes  483 

G.  L.  c.  62,  §§  24,  25] 

where  the  taxpayer  resides  or  has  his  principal  place  of  business 
or,  at  the  option  of  the  taxpayer,  with  the  commissioner,  shall  be 
made  in  such  form  as  the  commissioner  prescribes,  and  shall  contain 
such  further  information  as  he  deems  pertinent.  The  return  shall  be 
made  on  or  before  March  first  in  each  year,  and,  except  as  provided 
in  sections  seven  and  twenty-five,  shall  relate  to  the  income  received 
during  the  year  ending  on  December  thirty-first  preceding. 

Time  as  of  Which  Liability  to  Tax  is  Fixed 

Section  25.  Every  individual  who  is  an  inhabitant  of  the  com- 
monwealth at  any  time  between  January  first  and  June  thirtieth,  both 
inclusive,  in  any  year,  and  every  executor,  administrator,  trustee  or 
other  fiduciary  in  office  between  said  days  in  any  year,  who  is  such 
inhabitant,  or  who  derived  his  appointment  from  a  court  of  this  com- 
monwealth, and  the  estate  of  every  deceased  inhabitant  of  the  com- 
monwealth, shall  be  subject  to  the  taxes  imposed  by  this  chapter. 
Every  such  individual  or  fiduciary  shall  file  a  return  under  section 
'twenty-two  or  twenty-three  if  he  has  in  the  preceding  year  received 
income  taxable  under  this  chapter,  and  an  executor  or  administrator 
shall  file  a  return  under  section  twenty-three  if  his  decedent  in  the 
preceding  year  received  any  such  income  not  returned  by  the  de- 
cedent. If  a  person  has  become  an  inhabitant  of  the  commonwealth 
or  has  been  appointed  an  executor  or  administrator  after  February 
first  in  any  year,  the  return  shall  be  due  and  shall  be  filed  within 
ninety  days  after  he  becomes  such  inhabitant  or  receives  such  ap- 
pointment. 

Under  the  earlier  statutes  liability  to  taxation  in  any  city  or 
town  was  determined  by  the  domicile  of  the  taxpayer  on  April 
first  in  each  year,  and  in  order  to  establish  domicile  in  towns 
in  which  the  tax  rate  was  low  migrations  often  occurred  just 
prior  to  April  first.  The  present  law  however  bases  liability  to 
taxation  upon  domicile  in  this  commonwealth  at  any  time  within 
the  first  six  months  of  the  year  and  thus  discourages  temporary 
absences  as  a  means  of  evading  the  tax. 

It  is  to  be  noted  that  under  the  statute  liability  to  taxation  is 
not  based  upon  the  receipt  of  taxable  income  by  a  person  while 
resident  in  Massachusetts;  but  the  tax  is  a  tax  upon  individual 
inhabitants  for  the  year  in  which  the  return  is  filed,  measured  by 
ability    to    pay    as    evidenced    by    income    from    sources    not 


484  Taxation  in  Massachusetts 

[G.L.c.  62,  §§25-27 

otherwise  taxed  in  the  preceding  calendar  year.  Since  income  of 
the  current  year  cannot  be  determined  until  the  year  has  expired, 
the  tax  cannot  be  levied,  like  a  property  tax,  with  reference  to 
the  state  of  things  existing  on  the  day  as  of  which  the  tax  is  as- 
sessed, and,  from  the  necessity  of  the  case,  the  income  of  the 
previous  year  is  taken  as  the  measure  of  the  tax ;  but  the  theory 
that  the  income  is  the  measure  and  not  the  subject  of  the  tax  is 
consistently  followed  except  in  the  provision,  established  by  an 
amendment  after  the  enactment  of  the  original  act,  that  the 
income  (other  than  business  income)  of  an  inhabitant  who  died 
during  a  taxable  year  shall  be  taxed  to  his  executor  in  the  fol- 
lowing year.  Thus  one  who  becomes  a  resident  after  the  first 
day  of  January  is  taxable  for  income  received  while  he  was  a 
resident  of  another  state;  and,  conversely,  this  commonwealth 
makes  no  attempt  to  tax  a  person  who  receives  income  while 
living  in  this  commonwealth  but  who  removes  therefrom  prior 
to  the  first  day  of  January  in  the  following  year,  or  to  tax  a 
non-resident  who  derives  income  from  a  business  carried  on  in 
this  commonwealth  year  after  year. 

The  supreme  judicial  court  of  the  commonwealth  however 
held  that  the  theory  upon  which  the  statute  was  based  was  un- 
sound; that  the  tax  is. a  property  tax  and  cannot  be  levied  with 
respect  to  property  which  is  not  within  the  jurisdiction  of  the 
commonwealth,  and  that  consequently  a  person  who  changes 
his  domicile  to  Massachusetts  cannot  be  taxed  upon  income 
received  by  him  before  the  change  of  domicile  was  made  and 
while  he  was  a  resident  of  another  state.1 

Notices  and  Returns 

Section  26.  The  commissioner  shall  prepare  blanks  for  the  re- 
turns required  by  sections  twenty-two  and  twenty-three  and  shall 
cause  them  to  be  distributed  throughout  the  commonwealth;  but  no 
person  shall  be  excused  from  making  the  return  by  failure  of  the 
commissioner  to  send  or  give  one  of  the  blanks  to  him. 

Section  27.  The  commissioner  shall  annually  give  seasonable 
notice  of  the  requirements  of  sections  twenty-two  to  twenty -five,  in- 
clusive, by  posting  or  in  any  other  suitable  manner,  not  later  than 
January  fifteenth,  in  every  town  in  the  commonwealth. 

1  Hart  v.  Tax  Commissioner,  Mass.  (1921). 


Taxation  of  Incomes  485 

G.  L.  c.  62,  §  28] 

Omitted  and  Supplementary  Returns 

Section  28.  If  the  commissioner  shall,  from  information  derived 
from  the  return  or  otherwise,  be  of  opinion  that  any  person  whose 
income  is  taxable  under  this  chapter  may  have  failed  to  file  a  return, 
or  to  include  in  a  return  filed,  either  intentionally  or  through  error, 
.  all  the  sources  of  his  taxable  income,  he  may  require  from  such  person 
a  return  or  a  supplementary  return  on  oath,  in  such  form  in  each 
individual  instance  as  the  commissioner  prescribes,  of  all  the  sources 
from  which  the  taxpayer  received  any  income,  whether  or  not  taxable 
under  this  chapter  in  the  year  for  which  the  return  was  made.  If 
from  a  supplementary  return  or  otherwise  the  commissioner  finds  that 
any  sources  of  taxable  income  have  been  omitted  from  the  original 
return,  he  may  require  the  amount  of  income  from  each  source  of 
taxable  income  so  omitted  to  be  disclosed  to  him  on  oath  of  the  person 
liable  for  the  tax,  and  added  to  the  original  return.  Such  supple- 
mentary return  and  the  correction  of  the  original  return  shall  not 
relieve  the  person  making  the  same  from  any  of  the  penalties  to  which 
he  may  be  liable  under  any  provision  of  this  chapter.  The  commis- 
sioner may  proceed  under  any  provision  of  sections  thirty  and  thirty- 
five  to  thirty-seven,  inclusive,  whether  or  not  he  requires  a  return  or  a 
supplementary  return  under  this  section. 

The  purpose  of  this  section  is  two-fold.  In  the  first  place 
it  gives  the  commissioner  an  opportunity  to  demand  of  a  person 
who  has  wrongfully  failed  to  file  a  return  that  he  comply  with 
the  law ;  and  if  such  person,  after  receiving  the  notice,  persists  in 
his  refusal  to  file  the  return,  he  subjects  himself  to  the  serious 
penalties  imposed  by  section  fifty-six. 

In  the  second  place,  even  if  a  perspn  has  filed  a  return,  if  the 
commissioner  is  of  opinion  that  he  has  failed  to  include  in  such 
return  all  the  sources  of  his  taxable  income,  the  commissioner 
may  require  him  to  file  a  supplementary  return  showing  all  the 
sources  of  his  income;  and  if  such  supplementary  return  dis- 
closes sources  of  taxable  income  not  included  in  the  return,  the 
commissioner  may  then  require  such  person  to  disclose  on  oath 
the  amount  of  such  income. 

The  authority  granted  by  this  section  cannot  however  be  used 
by  the  commissioner  as  a  means  of  auditing  or  verifying  a  return 
filed  in  accordance  with  law.    The  taxpayer  may  be  required  to 


486  Taxation  in  Massachusetts  ' 

[G.  L.  c.  62,  §§  28-30 

disclose  the  sources  of  his  income;  he  may  probably  be  compelled 
to  name  the  corporations  whose  stock  and  bonds  he  owns  and  to 
designate  those  which  he  has  returned  as  taxable,  and  to  state 
in  general  terms  the  other  sources  of  his  income,  such  as  rents 
of  real  estate,  mortgage  interest,  interest  on  savings  deposits  and 
the  like;  but  the  commissioner  has  no  power  under  this  section 
to  require  a  person  who  has  filed  a  return  to  state  the  amount 
of  his  income  from  each  source,  or  the  number  of  shares  of  stock 
or  other  securities  which  he  holds,  unless  his  supplementary  re- 
turn disclosed  taxable  income  which  he  did  not  include  in  his 
original  return.  The  power  to  verify  returns  is  granted  solely 
by  the  provisions  of  section  thirty,  and  can  be  exercised  only 
under  the  limitations  contained  in  that  section. 


Extension  of  Time  for  Filing  Returns 

Section  29.  In  case  of  sickness,  absence  or  other  disability,  the 
commissioner  may  allow  further  time  for  filing  any  return  required 
by  this  chapter. 

Verification  of  Returns 

Section  30.  In  order  to  verify  any  return  made  pursuant  to  this 
chapter  the  commissioner  may,  within  two  years  after  September 
first  of  the  year  in  which  such  return  was  due,  if  he  has  reason  to 
believe  the  return  to  be  fraudulent  or  incorrect,  direct  by  special  au- 
thorization a  deputy  or  other  agent  to  verify  the  return ;  and  for  the 
purpose  of  such  verification  the  books  and  papers  of  the  person  shall 
be  open  to  the  examining  officer,  or  shall  be  produced  for  the  purpose 
upon  a  summons,  which  the  commissioner,  or  the  examining  officer, 
may  issue.  The  person  making  the  return  may  be  examined  by  such 
officer  on  oath. 

When  the  income  tax  law  was  enacted,  the  people  of  Massa- 
chusetts were  not  accustomed  to  inquisitorial  investigations  of 
their  private  affairs;  compulsory  returns  of  taxable  property 
were  unknown,  and  the  drastic  and  sometimes  arbitrary  exer- 
cise of  governmental  power  which  the  war  with  Germany  brought 
about  with  respect  to  the  enforcement  of  both  the  federal  income 
tax  law  and  other  statutes  rjad  not  then  begun.  The  idea  even  of 
a  compulsory  return  was  repugnant  to  many,  and  after  careful 


Taxation  op  Incomes  •  487 

G.  L.  c.  62,  §  30] 

consideration  by  the  legislature  it  was  deemed  inadvisable  to 
give  the  commissioner  general  power  to  audit  or  verify  returns 
which  had  been  filed  in  apparent  compliance  with  law,  and  it 
was  thought  best  to  trust  that  the  honesty  of  taxpayers,  the 
fairness  of  the  law,  and  the  severe  penalty  imposed  in  case  of  a 
fraudulent  return  would  render  any  general  evasion  of  the  law 
unlikely. 

It  is  only  in  special  cases,  when  the  commissioner  has  evidence 
in  his  possession  which  gives  him  reasonable  ground  to  believe 
that  a  return  is  fraudulent  or  incorrect,  that  a  verification  of  a 
return  by  examination  of  the  taxpayer  under  oath  and  production 
of  his  books  and  papers  is  authorized.  No  deputy  or  other  agent 
of  the  commissioner  may  lawfully  verify  a  return  without  a  spe- 
cial authorization  from  the  commissioner.  If  the  taxpayer  re- 
fuses to  submit  to  examination,  the  examining  officer  may  issue 
a  summons,  and  if  the  taxpayer  disregards  the  summons,  the 
examining  officer  may  apply  to  the  court  for  a  summons  from 
the  court,1  and  if  the  taxpayer  then  refuses  to  comply  with  the 
summons,  a  capias  may  issue  and  he  will  be  dealt  with  accord- 
ing to  law.  The  court  however  will  not  issue  a  summons  unless 
the  commissioner  produces  evidence  that  he  has  reason  to  believe 
the  return  to  be  fraudulent  or  incorrect. 

A  person  who  has  filed  a  return  can  therefore  not  be  required 
to  submit  to  the  verification  of  his  return  by  a  deputy  or  other 
agent  of  the  commissioner  unless  the  agent  exhibits  to  him  a 
special  authorization  from  the  commissioner,  stating  that  the 
commissioner  has  reason  to  believe  the  return  in  question  to  be 
fraudulent  or  incorrect  and  directing  the  agent  to  verify  the 
return ;  and  even  then,  if  the  taxpayer  doubts  whether  the  com- 
missioner had  good  reason  to  believe  his  return  to  be  fraudulent 
or  incorrect,  he  may  refuse  to  allow  his  return  to  be  verified  and 
contest  the  right  of  the  commissioner  to  require  verification  when 
the  commissioner  applies  to  the  court  for  a  summons. 

While  a  taxpayer  who  has  filed  an  honest  return  is  naturally 
reluctant  to  give  the  impression  that  he  has  something  to  con- 
ceal by  refusing  to  disclose  the  details  in  regard  to  his  income 
to  an  agent  of  the  commissioner,  taxpayers  should  bear  in  mind 
that  information  disclosed  to  the  taxing  officials  otherwise  than 
in  compliance  with  the  requirements  of  law  is  not  protected  by 

*G.  L.  c.  233,  §10. 


488  .  Taxation  in  Massachusetts 

[G.L.c.  62,  §§30-32 

law  from  being  made  public  or  from  being  otherwise  used  to  their 
private  disadvantage. 

Mandamus  to  Compel  Filing  of  Return 

Section  31.  If  any  person  fails  to  file,  on  or  before  May  first  of 
any  year,  a  return  required  by  this  chapter,  any  justice  of  the 
supreme  judicial  or  the  superior  court,  on  petition  of  the  commis- 
sioner or  the  income  tax  assessor  for  the  district  where  such  person 
is  required  to  file  the  return,  or  of  any  ten  taxable  inhabitants  of  the 
commonwealth,  shall  issue  a  writ  of  mandamus  requiring  such  person 
to  file  the  return.  The  order  of  notice  on  the  petition  shall  be  return- 
able not  later  than  ten  days  after  the  filing  thereof.  The  petition 
shall  be  heard  and  determined  on  the  return  day  or  on  such  day 
thereafter  as  the  court  shall  fix,  having  regard  to  the  speediest  possible 
determination  of  the  cause  consistent  with  the  rights  of  the  parties. 
The  judgment  shall  include  costs  in  favor  of  the  prevailing  party. 
All  writs  and  processes  may  be  issued  from  the  clerk's  office  in  any 
county,  and,  except  as  aforesaid,  shall  be  returnable  as  the  court 
orders. 

The  real  purpose  of  this  provision  was  to  enable  the  neighbors 
of  a  person  of  means  who,  through  the  connivance  of  the  taxing 
officials,  was  evading  taxation,  to  compel  him  to  file  a  return. 
It  was  doubtless  based  on  the  fear  that  some  of  the  experiences 
under  the  tax  laws  then  in  force  would  be  repeated,  but  no  occa- 
sion has  arisen  or  is  likely  to  arise  for  the  invocation  of  the 
statute  for  the  purpose  for  which  it  was  intended.  It  has  how- 
ever proved  useful  as  a  speedy  means  for  determining  the  tax- 
ability of  certain  classes  of  income  concerning  which  a  real  doubt 
exists.1 

Privacy  of  Returns 

Section  32.  Returns  shall  be  open  to  the  inspection  of  the  com- 
missioner, and  his  deputies,  assistants  and  clerks  when  acting  under 
his  authority,  and  the  income  tax  assessors,  and  their  deputies,  as- 
sistants and  clerks  when  acting  under  their  authority.  The  books, 
accounts  and  other  records  in  the  hands  of  the  commissioner,  except 
returns,  shall  be  open  to  the  inspection  of  the  state  auditor,  and  his 

1  See  Tax  Commissioner  v.  Putnam,  227  Mass.  522  (1917). 


Taxation  of  Incomes  489 

G.  L.  c.  62,  §§  32,  33] 

deputies,  assistants  and  clerks  when  acting  under  his  authority  for  the 
purpose  of  auditing  the  accounts  of  the  commissioner.  Said  returns 
shall  be  preserved  for  two  years,  and  thereafter  until  the  commis- 
sioner orders  them  destroyed.  The  commissioner  shall,  on  request  of 
any  inhabitant  of  the  commonwealth,  state  whether  or  not  any  desig- 
nated person  has  filed  an  income  tax  return  for  the  current  or  any 
prior  year. 

The  penalty  for  disclosure  of  returns  except  in  accordance 
with  this  section  is  found  in  section  fifty-eight  of  this  chapter. 

This  statute  leaves  it  to  be  decided  when  the  question  arises, 
whether  an  income  tax  return  can  be  used  against  the  person 
making  it  in  judicial  proceedings  in  which  his  income  is  material, 
as  for  the  determination  of  alimony,  or  in  respect  to  damages  for 
breach  of  promise  of  marriage,  or  in  proceedings  to  enforce  pay- 
ment of  a  judgment  for  necessaries  and  the  like. 


Information  at  the  Source 

Section  33.  Every  employer,  being  an  inhabitant  of  the  com- 
monwealth or  having  a  place  of  business  therein,  shall  file  annually 
with  the  commissioner  a  return  in  such  form  as  he  shall  from  time 
to  time  prescribe,  giving  the  names  and  addresses  of  all  regular  em- 
ployees residing  in  the  commonwealth  to  whom  said  employer  has 
paid  wages,  salary  or  other  compensation  in  excess  of  the  sum  of 
eighteen  hundred  dollars  during  the  preceding  calendar  year.  In  any 
individual  case,  upon  request  of  the  commissioner,  the  exact  wages, 
salary  or  other  compensation  shall  be  stated. 

Every  corporation  and  every  partnership,  association  or  trust 
the  beneficial  interest  in  which  is  represented  by  transferable  shares, 
doing  business  in  the  commonwealth,  unless  the  dividends  paid  on  its 
shares  are  exempt  from  taxation  under  section  one,  shall  annually 
file  with  the  commissioner  in  such  form  as  he  shall  from  time  to  time 
prescribe,  a  complete  list  of  the  names  and  addresses  of  its  share- 
holders, as  of  record  on  December  thirty-first  of  the  preceding  year, 
or  on  any  other  date  satisfactory  to  the  commissioner,  or,  in  its  dis- 
cretion, of  such  shareholders  as  are  residents  of  the  commonwealth, 
together  with  the  number  and  class  of  shares  held  by  each  share- 
holder and  the  rate  of  dividends  paid  on  each  class  of  stock  for  such 
preceding  year. 


490  Taxation  in  Massachusetts 

[G.  L.  c.  62,  §§  33,  34 
Every  corporation,  partnership,  association  or  trust  doing  busi- 
ness in  the  commonwealth  shall  report  annually  to  the  commissioner, 
in  such  form  as  he  shall  from  time  to  time  prescribe,  the  names  and 
addresses  of  all  residents  of  the  commonwealth  to  whom  it  has  paid 
interest  during  the  preceding  calendar  year  on  its  bonds,  notes  or 
other  evidences  of  indebtedness,  and  to  whom  it  has  paid  any  annui- 
ties, except,  however,  interest  coupons  payable  to  bearer,  and  income 
exempt  from  taxation  under  this  chapter.  In  any  individual  case, 
any  such  corporation,  partnership,  association  or  trust  shall,  upon 
request  of  the  commissioner,  state  the  respective  amounts  of  interest 
and  annuities  so  paid  by  it  to  any  person  during  any  calendar  year. 

The  returns,  lists  and  reports  required  by  this  section  shall  be 
made  on  or  before  March  first  in  each  year ;  but  the  commissioner  may 
authorize  them  to  be  made  at  any  other  date  and  in  connection  with 
any  other  reports  or  returns  that  said  individuals,  partnerships,  asso- 
ciations, trusts  and  corporations  may  be  required  to  file  with  him. 

Section  34.  The  treasurer  of  every  city,  town  and  county,  and 
the  state  auditor,  shall,  annually  not  later  than  April  tenth,  in  the 
form  prescribed  by  the  commissioner,  furnish  to  him  names  and  ad- 
dresses of  all  employees  of  said  cities,  towns,  counties  and  of  the 
commonwealth,  respectively,  receiving  during  the  preceding  calendar 
year  as  salary,  wages,  or  otherwise,  amounts  exceeding  eighteen  hun- 
dred dollars  in  each  case,  together  with  the  amount  received  by  each. 

Section  thirty-three,  it  will  be  noticed,  throws  an  obligation 
upon  corporations  and  non-residents,  who  are  not  obliged  to  file 
any  return  of  their  own  income.  The  fixing  of  the  minimum 
salary  to  be  returned  at  eighteen  hundred  dollars  was  due  to  the 
assumption  that  persons  having  such  salary  might  well  have 
other  income  of  two  hundred  dollars  and  so  be  bound  to  file 
a  return. 

The  term  "regular  employees"  includes  all  persons  who  have 
customarily  been  employed  in  any  capacity  during  the  year  when 
occasion  for  such  employment  arises,  as  distinguished  from  per- 
sons employed  for  a  particular  piece  of  work.  Compensation 
other  than  in  money  must  be  included,  but  no  bonuses  or  extra 
commissions  to  which  the  employee  was  not  legally  entitled.  It 
has  been  ruled  that  "employees"  includes  officers  of  a  corpora- 
tion, but  the  soundness  of  this  ruling  is  perhaps  open  to  question. 
"Doing  business"  in  this  section  is  used  in  its  ordinary  sense. 


Taxation  of  Incomes  491 

G.  L.  c.  62,  §§  34-36] 

A  corporation  which  merely  maintains  a  transfer  agent  in  this 
commonwealth  is  not  obliged  to  file  a  list  of  its  shareholders. 

"Bonds,  notes  or  other  evidences  of  indebtedness"  means  evi- 
dences of  indebtedness  which  are  in  the  form  of  securities  and 
does  not  include  accounts  payable  or  deposits  in  a  bank  or  trust 
company. 

Assessment  of  Persons  Who  Have  Filed  Returns 

Section.  35.  The  commissioner  shall  determine  from  the  returns 
required  by  this  chapter,  or  in  any  other  manner,  the  income  of 
every  person  taxable  thereunder,  and  shall  assess  thereon  the  tax 
hereby  provided;  but  he  shall  not  determine  the  income  of  a  person 
who  has  filed  a  return  in  accordance  with  sections  twenty-two  to 
twenty-five,  inclusive,  within  the  time  prescribed  by  law,  to  be  in 
excess  of  that  disclosed  by  such  return,  without  notifying  such  person 
and  giving  him  an  opportunity  to  explain  the  apparent  incorrectness 
of  his  return. 

This  provision  marks  a  departure  from  the  law  in  regard  to 
the  taxation  of  personal  property  in  that  the  commissioner  is 
not  bound  to  "receive  as  true"  a  return  duly  filed.  He  is  bound 
to  give  the  taxpayer  an  opportunity  for  explanation  if  he  rejects 
the  figures  in  his  return,  but  he  is  not  obliged  to  accept  the  ex- 
planation and  may  assess  the  tax  upon  extrinsic  evidence.  The 
taxpayer  however,  if  he  is  overassessed,  having  filed  a  return, 
is  in  position  to  contest  the  assessment  and  to  secure  an  abate- 
ment by  appropriate  proceedings. 

Assessment  of  Persons  Who  Have  Not  Filed  Returns 

Section  36.  If  any  person  who  has  failed  to  file  a  return,  or  has 
filed  an  incorrect  or  insufficient  return,  and  has  been  notified  by  the 
commissioner  of  his  delinquency,  refuses  or  neglects  within  twenty 
days  after  such  notice  to  file  a  proper  return,  or  if  any  person  files  a 
fraudulent  return,  the  commissioner  shall  determine  the  income  of 
such  person,  taxable  under  this  chapter,  according  to  his  best  infor- 
mation and  belief,  and  assess  the  same  at  not  more  than  double  the 
amount  so  determined. 

A  person  who  is  lawfully  assessed  under  the  provisions  of 
this  section  cannot  in  any  event  be  granted  an  abatement  by  the 


192  Taxation  in  Massachusetts  , 

[G.  L.  c.  62,  §§  36,  37 

commissioner  below  double  the  amount  for  which  he  was  prop- 
erly taxable,1  and  if  the  commissioner  rightly  or  wrongly  refuses 
to  give  him  even  this  measure  of  relief,  however  arbitrary  or  ex- 
cessive the  tax  may  have  been,  the  taxpayer  can  have  no  redress 
from  the  superior  court,  unless  it  appears  that  he  had  good  cause 
for  his  delay  in  filing  his  return.2  In  this  respect  the  statute  was 
modelled  upon  the  law  in  regard  to  the  taxation  of  personal 
property.3 

Omitted  Assessments 

Section  37.  If  the  commissioner  finds  from  the  verification  of  a 
return,  or  otherwise,  that  the  income  of  any  person  subject  to  taxa- 
tion under  this  chapter  or  any  portion  thereof,  has  not  been  assessed, 
he  may,  at  any  time  within  two  years  after  September  first  of  the 
year  in  which  such  assessment  should  have  been  made,  assess  the 
same,  first  giving  notice  to  the  person  so  to  be  assessed  of  his  inten- 
tion, and  such  person  shall  thereupon  have  an  opportunity  within 
ten  days  after  such  notification  to  confer  with  the  commissioner  in 
person  or  by  counsel  or  other  representative  as  to  the  proposed  assess- 
ment. After  the  expiration  of  ten  days  from  such  notification  the 
commissioner  shall  assess  the  income  of  such  person  subject  to  taxa- 
tion, or  any  portion  thereof,  which  he  believes  has  not  theretofore 
been  assessed,  and  he  shall  thereupon  give  notice  under  section  thirty- 
nine  to  the  person  so  assessed,  and  the  tax  shall  be  payable  fourteen 
days  after  the  date  of  such  notice.  The  provisions  of  this  chapter  in 
respect  to  the  abatement  and  collection  of  taxes  shall  apply  to  a  tax 
so  assessed.  Whenever,  in  the  course  of  a  verification  of  the  returns 
of  a  taxpayer  under  section  thirty,  the  commissioner  finds  that  an 
overpayment  of  the  total  amount  of  taxes  due  from  such  taxpayer  has 
been  made  on  any  year's  return  subject  to  verification,  the  amount  of 
such  overpayment  shall  be  deducted  from  the  amount  of  any  addi- 
tional tax  found  to  be  due  on  any  other  year 's  returns  so  verified,  and 
only  the  net  amount  thus  determined  to  be  due  shall  be  assessed  addi- 
tionally. 

This  section  is  in  its  original  form,  except  that  the  last  sen- 
tence, authorizing  deduction  for  overpayments,  was  added  in 
1920.     It  is  to  be  noted  that  an  overpayment  discovered  after 

1  G.  L.  c.  62,  §44,  infra,  page  495. 

2  See  G.  L.  c.  62,  §47,  infra,  page  498. 

3  G.  L.  c.  59,  §64,  supra,  page  293. 


Taxation  of  Incomes  493 

G.  L.  c.  62,  §§  37-39] 

the  time  for  filing  petitions  for  abatement  has  expired  and  not 
due  to  an  error  of  the  income  tax  officials,  cannot  be  used  as  a 
credit,  except  against  an  underpayment  on  some  other  item  by 
the  same  taxpayer. 

Rules  and  Regulations  of  the  Commissioner 

Section  38.  The  commissioner  may  from  time  to  time  make  such 
rules  and  regulations,  not  contrary  to  this  chapter,  as  he  deems  neces- 
sary to  carry  out  its  provisions. 

Under  authority  of  this  section  the  commissioner  has  prepared 
a  set  of  rules  and  regulations,  known  as  Bulletin  No.  5,  contain- 
ing not  only  instructions  in  regard  to  the  preparation  and  filing 
of  returns  and  other  forms,  but  also  interpretations  of  the  various 
sections  of  the  income  tax  law  and  rulings  of  law  in  regard  to 
various  situations  which  have  arisen  or  seem  likely  to  arise. 
While  all  of  the  rules  and  regulations  are  carefully  thought  out 
and  are  of  great  service  in  preparing  returns,  taxpayers  should 
appreciate  the  difference  between  the  regulations  which  relate  to 
procedure  and  which  unless  inconsistent  with  the  statute  have 
the  force  of  law  and  would  be  recognized  as  binding  by  the  courts, 
and  those  which  relate  to  the  construction  of  the  law  and  which 
are  binding  only  upon  the  officers  of  the  income  tax  division, 
and  which,  while  they  indicate  to  the  taxpayer  the  position  that 
will  be  taken  by  the  commissioner,  are  not  even  considered  by 
the  court  if  the  question  to  which  they  relate  is  submitted  for 
judicial  determination. 

Collection  of  Income  Taxes 

Section  39.  The  commissioner,  annually  on  or  before  September 
first,  shall  give  written  notice  to  every  person  taxable  under  this 
chapter  of  the  amount  of  the  tax  payable  by  him,  and  of  the  date  on 
which  the  tax  is  due  and  payable,  which  shall  be  October  first.  The 
notice  shall  be  mailed,  postage  prepaid,  addressed  to  the  person  as- 
sessed at  his  place  of  residence  or  business,  or  at  the  address  given  in 
his  return,  or  otherwise  delivered  at  such  place  of  residence  or  busi- 
ness or  at  such  address.  All  taxes  assessed  hereunder  may  be  paid  at 
the  office  of  the  commissioner  in  Boston  or  at  the  office  of  the  income 
tax  assessor  for  the  district  where  the  taxpayer  resides  or  has  his 
principal  place  of  business,  at  the  option  of  the  taxpayer,  and  the 


494  Taxation  in  Massachusetts 

[G.  L.  c.  62,  §§  39-43 
notice  shall  state  the  places  at  which  the  tax  may  be  paid.  Failure 
to  receive  such  notice  shall  not  affect  the  validity  of  the  tax. 

Section  40.  All  taxes  received  by  the  income  tax  assessors  shall 
be  accounted  for  and  turned  over  to  the  commissioner  as  often  as 
once  in  each  week. 

Section  41.  If  a  tax  assessed  under  this  chapter  is  not  paid 
within  fifteen  days  from  the  date  when  due,  interest  at  the  rate  of  six 
per  cent  per  annum  from  the  due  date  shall  be  added  to  and  become 
part  of  the  tax.  The  commissioner,  and  the  income  tax  assessors  in 
their  respective  districts,  shall  have  for  the  collection  of  taxes  assessed 
under  this  chapter  all  the  remedies  provided  by  chapter  sixty  for  the 
collection  of  taxes  on  personal  estate  by  collectors  of  taxes  of  towns, 
and  shall  be  allowed  charges  and  fees  as  therein  provided.  Any 
action  of  contract  brought  to  recover  any  such  tax  shall  be  brought  in 
the  name  of  the  commonwealth. 

Section  42.  If  any  income  taxable  under  this  chapter,  received 
by  executors,  administrators,  trustees,  or  other  fiduciaries,  is  duly 
assessed  to  them  thereunder  and  they  neglect  to  pay  the  same,  any 
such  fiduciary  shall  be  personally  liable  therefor  to  the  commissioner 
in  contract,  and  may  be  allowed  in  his  account  for  the  amount  paid 
by  him. 

The  "notice"  referred  to  in  section  thirty-nine  is  of  course 
what  is  ordinarily  known  as  a  tax  bill.  It  should  be  remembered 
that  liability  to  the  tax  does  not  depend  upon  the  receipt  of  the 
bill,  and  that  a  person  who  has  received  taxable  income  and  has 
been  assessed  thereon  is  liable  to  interest  and  other  penalties 
whether  he  has  received  a  bill  or  not.  If  he  has  received  no  bill 
it  is  incumbent  upon  him  to  make  inquiries  as  to  the  amount 
of  his  tax. 

The  means  of  enforcing  payment  provided  in  section  forty- 
one  by  reference  to  chapter  sixty  include  first  a  summons,  upon 
which  a  fee  of  twenty  cents  is  payable,  and  then  an  action  at 
law  against  the  person  assessed,  the  seizure  of  his  personal  prop- 
erty by  distress,  or  the  arrest  of  his  person,  at  the  option  of  the 
assessor, 

Abatement  by  the  Commissioner 

Section  43.  Any  person  aggrieved  by  the  assessment  of  a  tax 
under  this  chapter  may  apply  to  the  commissioner  for  an  abatement 


Taxation  of  Incomes  495 

G.  L.  c.  62,  §§  43,  44] 

thereof  at  any  time  within  six  months  after  the  date  of  the  notice  of 
the  assessment,  or,  if  he  dies  during  said  six  months  his  executor  or 
administrator  may  apply  for  such  abatement  within  one  month  after 
his  appointment ;  and  if,  after  a  hearing,  the  commissioner  finds  that 
the  tax  is  excessive  in  amount  or  that  the  person  assessed  is  not  sub- 
ject thereto,  he  shall  abate  it  in  whole  or  in  part  accordingly.  If  the 
tax  has  been  paid,  the  state  treasurer  shall  repay  to  the  person  as- 
sessed the  amount  of  such  abatement,  with  interest  thereon  at  the  rate 
of  six  per  cent  per  annum  from  the  time  when  it  was  paid.  The 
commissioner  shall  notify  the  petitioner  by  registered  letter  of  his 
decision  upon  the  petition. 

Section  44.  No  tax  assessed  on  any  person  liable  to  taxation 
under  this  chapter  shall  be  abated  in  any  event  unless  the  person 
assessed  shall  have  filed,  at  or  before  the  time  of  bringing  his  petition 
for  abatement,  a  return  as  required  by  sections  twenty-two  to  twenty- 
five,  inclusive;  and  if  he  failed  without  good  cause  to  file  his  return 
within  the  time  prescribed  by  law,  or  filed  a  fraudulent  return,  or, 
having  filed  an  incorrect  or  insufficient  return,  has  failed,  after 
notice,  to  file  a  proper  return,  the  commissioner  shall  not  abate  the 
tax  below  double  the  amount  for  which  the  person  assessed  was 
properly  taxable  under  this  chapter. 

The  first  step  in  contesting  a  tax  assessed  upon  income  in 
every  case,  whether  the  taxpayer  denies  the  validity  of  the  entire 
tax  or  contends  that  the  tax  is  excessive  in  amount,  is  an  appli- 
cation to  the  commissioner  for  the  abatement  of  the  tax.  This 
procedure  may  be  followed,  whether  the  tax  has  been  paid  or 
not;  and  may  be  availed  of  although  the  tax  has  been  paid 
without  protest.  Applications  must  be  prepared  upon  a  form 
prescribed  by  the  commissioner  and  must  be  filed  within  six 
months  of  the  date  of  the  tax  bill.1  If  mailed,  the  postmark  de- 
termines whether  the  filing  is  seasonable.  If  an  informal  appli- 
cation is  seasonably  filed,  it  will  be  considered  if  an  application 
in  proper  form  is  sent  promptly  after  notification  by  the  com- 
missioner that  the  first  application  was  not  in  proper  form,  al- 
though the  formal  application  is  filed  after  the  expiration  of  the 
statutory  period.  Applications  for  abatement  based  upon  an 
error  by  the  income  tax  division  will  be  received  at  any  time, 
if  filed  promptly  after  the  discovery  of  the  error  by  the  taxpayer. 

1  In  the  original  statute  the  period  was  three  months,  but  by  St.  1920,  c.  385, 
§4,  it  was  extended  to  six  months. 


496  Taxation  in  Massachusetts 

[G.  L.  c.  62,  §§  44,  45 

In  case  the  application  for  abatement  is  based  upon  the 
three  hundred  dollar  exemption  granted  by  section  eight,  para- 
graph (a),  or  upon  the  accidental  inclusion  in  the  return  of 
non-taxable  income,  the  commissioner  requires  a  statement  in  de- 
tail of  the  entire  income  of  the  taxpayer  from  all  sources  to  ac- 
company the  application.  An  individual  taxpayer,  or  a  partner 
or  beneficiary,  is  deemed  to  have  waived  any  exemptions  or  de- 
ductions to  which  he  is  entitled  and  which  have  not  been  claimed 
on  the  return,  unless  an  application  for  abatement  is  filed  within 
the  six  months'  period. 

An  application  for  abatement  will  be  determined  upon  the 
statements  in  the  application  and  such  supplementary  state- 
ments and  affidavits  as  the  taxpayer  may  file  therewith,  unless 
the  taxpayer  requests  a  formal  hearing.  If  a  hearing  is  asked 
for,  notice  of  the  time  and  place  of  the  hearing  will  be  given 
the  taxpayer,  and  he  may  be  represented  by  counsel  if  he  so  de- 
sires. If  no  postponement  is  asked  for  and  granted,  and  the  tax- 
payer does  not  appear  either  personally  or  by  counsel  at  the  time 
set  for  the  hearing,  the  hearing  will  be  declared  closed. 

The  provision  in  section  forty-four  in  regard  to  the  filing 
of  a  return  as  a  prerequisite  to  an  application  for  abatement  is 
similar  to  the  law  in  regard  to  the  abatement  of  taxes  upon  per- 
sonal property.2  The  income  tax  act  however  makes  it  clear  that 
the  return  must  be  filed  not  later  than  the  time  when  the  peti- 
tion is  brought,  whereas  under  the  law  in  regard  to  personal 
property  a  list  might  be  filed  at  any  time  before  the  hearing.  The 
penalty  in  case  a  return  was  without  reasonable  excuse  not  filed 
seasonably  is  increased  from  fifty  per  cent  as  it  existed  in  the 
law  relating  to  personal  property  to  one  hundred  per  cent;  but 
the  provision  in  regard  to  the  penalty  is  still  a  limitation  and 
not  a  direction,  and  if  the  commissioner,  after  he  has  assessed 
a  tax  more  than  twice  too  large,  refuses  to  make  any  abatement 
whatever,  the  taxpayer  has  no  remedy  except  the  statutory  ap- 
peal. 

Appeal  to  the  Board  of  Appeal 

Section  45.  Any  person  aggrieved  by  the  refusal  of  the  com- 
missioner to  abate,  in  whole  or  in  part,  under  section  forty-three,  a 

2  See  G.  L.  c.  59,  §61,  supra,  page  287. 


Taxation  of  Incomes  497 

G.  L.  c.  62,  §§  45,  46] 

tax  assessed  under  this  chapter,  may  appeal  therefrom,  within  thirty 
days  after  receiving  notice  of  the  decision  of  the  commissioner,  by 
filing  a  complaint  with  the  clerk  of  the  board  of  appeal  from  decisions 
of  the  commissioner.  If,  on  hearing,  said  board  finds  that  the  person 
making  the  appeal  was  entitled  to  an  abatement  under  section  forty- 
three  from  the  tax  assessed  on  him,  it  shall  make  such  abatement  as 
it  sees  fit.  The  decision  of  the  board  of  appeal  shall  be  final  and  con- 
clusive, and  shall  be  communicated  in  writing  to  the  petitioner  and 
the  commissioner  within  five  days  thereafter. 

Section  46.  If  the  tax  abated  has  been  paid,  the  state  treasurer 
shall  repay  to  the  petitioner  the  amount  of  the  abatement  and  in- 
terest at  the  rate  of  six  per  cent  per  annum  from  the  time  of  pay- 
ment, upon  presentation  to  him  by  the  petitioner  of  the  notice  of  the 
decision  of  the  board. 

The  remedy  by  appeal  to  the  board  of  appeal,  which  is  the 
tribunal  established  by  section  twenty-one  of  chapter  six  of  the 
General  Laws1  primarily  to  pass  upon  appeals  in  questions  of 
valuation  arising  under  the  corporation  tax  law,  was  granted  by 
the  legislature  in  supposed  analogy  to  the  now  obsolescent 
remedy  of  appeal  to  the  county  commissioners  in  the  case  of 
the  local  property  tax.  The  paragraph  is  not  very  well  phrased, 
but  it  apparently  gives  the  board  of  appeal  a  wide  discretion  in 
abating  taxes  and  in  its  original  form  permitted  the  board  to 
remit  the  penalty  of  doubling  the  tax  in  case  a  taxpayer  has 
failed  without  good  cause  to  file  a  return  within  the  prescribed 
time.  In  the  consolidation  of  the  General  Laws  the  phraseology 
of  this  section  was  somewhat  changed  without  any  amendment 
by  the  legislature,  so  that  whether  intentionally  or  otherwise 
the  powers  of  the  board  of  appeal  have  been  considerably  cut 
down. 

The  provision  that  the  decision  of  the  board  of  appeal  shall 
be  final  and  conclusive  is  to  be  construed  as  applicable  only  to 
decisions  of  questions  of  fact,  and  not  as  depriving  the  taxpayer 
of  his  right  to  have  questions  of  law  finally  determined  by  the 
supreme  judicial  court.2  The  proper  procedure  in  case  the  ap- 
pellant desires  to  raise  questions  of  law  is  to  submit  to  the  board 
requests  for  rulings  of  law  in  accordance  with  his  contentions, 

1  Supra,  page  139. 

*  See  Commissioner  of  Public  Works  v.  Justice  of  Dorchester  District,  228 
Mass.  12  (1917). 


498  Taxation  in  Massachusetts 

[G.  L.  c.  62,  §§  46,  47 

and  if  the  decision  of  the  board  is  adverse,  to  file  in  the  supreme 
judicial  court  a  petition  for  writ  of  certiorari,  asking  that  the 
board  be  required  to  certify  their  proceedings,  and  their  action 
upon  the  requests  for  rulings. 

The  provisions  of  section  forty-six  are  not  accepted  literally 
by  the  state  treasurer,  and  in  practice  payment  is  not  made  upon 
presentation  to  him  of  the  notice  of  the  decision  of  the  board  of 
appeal,  but  in  due  season  a  check  for  the  amount  abated  is  mailed 
to  the  taxpayer. 

* 

Appeal  to  the  Superior  Court 

Section  47.  (As  amended  by  St.  1921,  chapter  113,  section  1.) 
Any  person  agrieved  by  the  refusal  of  the  commissioner  to  abate  in 
whole  or  in  part  under  section  forty-three  a  tax  assessed  under  this 
chapter,  and  who  has  paid  his  tax,  may,  instead  of  pursuing  the 
remedy  provided  in  section  forty-five,  appeal  from  such  refusal  by 
filing  a  complaint  against  the  commissioner  in  the  superior  court  for 
the  county  where  such  person  resides  or  has  his  principal  place  of 
business,  or,  if  such  person  claims  a  domicile  without  the  common- 
wealth, by  filing  a  complaint  against  the  commissioner  in  the  superior 
court  for  any  county,  within  thirty  days  after  the  notice  by  the  com- 
missioner of  his  decision  in  accordance  with  section  forty-three.  An 
order  of  notice  shall  be  issued  by  said  court  and  served  on  the  com- 
missioner within  such  time  as  the  court  directs,  and  subsequent  pro- 
ceedings shall  be  conducted  in  accordance  with  sections  sixty-five  to 
sixty-eight,  inclusive,  of  chapter  fifty-nine.  If  an  abatement  is 
granted,  the  amount  thereof  shall  be  repaid  to  the  complainant  by  the 
state  treasurer,  with  interest  at  the  rate  of  six  per  cent  per  annum  from 
the  time  when  the  tax  was  paid,  and  costs. 

This  provision  was  designed  to  conform  to  the  existing 
practice  in  the  case  of  appeals  from  the  refusal  of  assessors  of  a 
city  or  town  to  abate  a  tax  upon  real  or  personal  property.1  In 
the  original  statute  it  was  expressly  provided  that  "if  the  com- 
plainant was  subject  to  taxation  under  this  act  and  did  not 
file  his  return  within  the  time  prescribed  by  law,  he  shall  not  be 
entitled  to  have  any  part  of  his  tax  abated  by  the  court,  unless 
the  court  finds  that  he  had  good  cause  for  his  delay,  or  the  tax 

1  G.  L.  c.  59,  §64,  supra,  page  293. 


Taxation  of  Incomes  499 

G.  L.  c.  62,  §§  47,  48] 

commissioner  had  previously  so  found."2  In  this  respect,  as  in 
others,  it  was  intended  to  follow  the  rule  in  the  case  of  the  prop- 
erty tax,  and  to  include  as  one  of  the  penalties  for  failure  to  file 
a  return  within  the  prescribed  time  an  absolute  denial  of  the  right 
of  appeal  to  the  superior  court,  no  matter  how  excessive  the  tax 
may  have  been,  or  how  unwarranted  the  refusal  of  the  commis- 
sioner to  abate  it.3  For  some  unexplained  reason  the  words 
above  quoted  were  omitted  by  the  commissioners  who  prepared 
the  General  Laws,  and  whether  the  somewhat  drastic  rule  which 
they  established  is  still  in  force  may  be  open  to  some  doubt. 

Statutory  Remedies  Exclusive 

Section  48.  (As  amended  by  St.  1921,  chapter  113,  section  2.) 
The  remedies  provided  by  sections  forty-three  to  forty-seven,  in- 
clusive, shall  be  exclusive,  whether  or  not  the  tax  is  wholly  illegal. 
But  the  word  "exclusive"  in  this  section  shall  not  be  construed  to 
deprive  any  person  of  a  right  of  action  at  law  in  any  federal  court. 

The  object  of  this  provision  is  to  exclude  the  possibility  of  a 
common  law  action  of  contract  in  the  case  of  a  tax  wholly  illegal, 
and  to  make  all  controversies,  whether  as  to  validity  or  amount, 
determinable  in  the  statutory  proceedings  for  abatement  only, 
and  thus  to  avoid  the  difficult  and  technical  questions  which  had 
arisen  in  connection  with  local  property  taxes  with  respect  to 
the  propriety  of  the  statutory  or  the  common  law  proceedings.1 

The  last  sentence  of  the  foregoing  section  was  added  in  1921 
and  merely  states  the  law  as  it  previously  existed,  as  a  state 
statute  cannot  deprive  any  person  of  his  remedies  in  the  federal 
courts.  A  citizen  of  another  state  or  nation  upon  whom  an 
income  tax  is  assessed  by  this  commonwealth  upon  the  ground 
that  he  is  an  inhabitant  thereof  may,  if  the  amount  involved 
exceeds  three  thousand  dollars,  contest  his  liability  to  the  tax 
in  the  United  States  district  court  either  by  means  of  a  bill 
in  equity  seeking  to  enjoin  the  commissioner  from  proceeding 
to  collect  the  tax,2  or  by  paying  the  tax  under  protest  and  bring- 
ing an  action  at  common  law  for  money  had  and  received  against 

2St.  1916,  c.  269,  §20. 

3  Sears  v.  Nahant,  205  Mass.  558  (1910). 

1  See  G.  L.  c.  60,  §98,  supra,  page  400. 

2  Dunn  v.  Trefry,  260  Fed.  Rep.  147  (1919),  and  see  also  Agassiz  v.  Trefry, 
266  Fed.  Rep.  8  (1920)   affirming  260  Fed.  Rep.  226   (1919). 


500  Taxation  in  Massachusetts 

[G.  L.  c.  62,  §§  48-51 

the  state  treasurer  who  was  in  office  when  the  tax  was  collected.5 
If  the  liability  of  any  person  to  the  tax  is  questioned  by  him  on 
the  ground  that  his  rights  under  the  federal  constitution  are  vio- 
lated, he  may  seek  redress  in  the  United  States  courts,  without 
regard  to  his  citizenship  or  the  amount  involved. 

Loss  of  Exemption  of  Principal  by  Failure  to  Return  Income 

Section  49.  All  property  owned  by  a  resident  of  the  common- 
wealth on  April  first  in  any  year,  which  during  the  preceding  cal- 
endar year  had  produced  for  such  owner  any  income  taxable  under 
this  chapter,  shall,  despite  anything  in  this  chapter,  be  subject  to 
taxation  to  such  owner  in  accordance  with  chapters  fifty-nine  and 
sixty,  if  such  owner  does  not  make  to  the  commissioner  a  full  return 
of  his  taxable  income  from  such  property  on  or  before  September 
first  of  the  year  in  which  a  return  of  income  is  required  by  sections 
twenty-two  to  twenty-five,  inclusive,  and  provided  the  tax  so  assessed 
is  greater  than  the  amount  of  the  tax  properly  payable  under  sections 
one  and  thirty-five  to  thirty-seven,  inclusive. 

Section  50.  Property  taxable  in  any  year  under  the  preceding 
section  shall  be  assessed  in  that  year  between  September  second  and 
December  tenth,  both  inclusive.  The  amount  of  taxes  assessed  by 
the  local  assessors  upon  such  property  in  such  town  in  any  year, 
less  the  amount  assessed  and  collected  by  the  commissioner  as  here- 
inafter provided,  shall  be  entered  on  the  tax  list  of  the  collector  of 
such  town,  and  he  shall  collect  and  pay  over  the  same  to  the  town. 

Section  51.  Any  taxpayer  aggrieved  by  the  assessment  of  a  tax 
under  section  forty-nine  may  appeal  to  the  commissioner  within  thirty 
days  after  the  receipt  of  the  tax  bill  therefor,  or  other  actual  notice 
of  the  assessment.  In  ease  of  an  adverse  determination  by  the  com- 
missioner, the  taxpayer  may  appeal  to  the  board  of  appeal  as  pro- 
vided in  section  forty-five,  or  to  the  superior  court  as  provided  in 
section  forty-seven ;  and  if  the  taxpayer  shall  prove  that  the  income 
of  the  property  was  duly  returned  or  that  it  was  not  taxable  or  that 
there  was  reasonable  excuse  for  not  making  the  return,  the  tax  shall 
be  abated,  and,  if  it  has  previously  been  paid,  the  amount  abated  shall 
be  repaid  by  the  town  to  the  taxpayer,  with  interest  from  the  time 
of  such  payment. 

8  International  Paper  Co.  v.  Burr  ill,  260  Fed.  Rep.  664  (1919). 


Taxation  of  Incomes  501 

G.  L.  c.  62,  §§  52-54  inc.] 

Section  52.  At  any  time  prior  to  the  collection  by  the  town  of 
the  tax  provided  for  by  section  forty-nine  the  commissioner  may 
assess  and  collect  the  tax  provided  for  by  this  chapter  on  the  in- 
come of  the  property,  subject  to  the  limitation  of  time  provided  by 
section  thirty-seven.  Upon  the  collection  of  the  tax,  the  commissioner 
shall  at  once  notify  the  tax  collector  of  the  town  where  the  taxpayer 
resides,  and  the  tax  collected  by  the  commissioner  shall  be  deducted 
from  the  tax  assessed  in  that  town ;  and  if  the  tax  assessed  therein  has 
been  collected,  the  amount  so  deducted  shall  be  repaid  by  the  town  to 
the  taxpayer.  If  a  tax  collected  by  a  town  under  section  forty -nine 
is  afterward  abated,  the  amount  of  the  abatement,  together  with  the 
amount  of  any  interest  paid  by  the  taxpayer  on  that  amount,  shall 
be  paid  by  the  town  to  the  taxpayer. 

Section  53.  Upon  discovery  of  property  the  income  of  which  for 
the  preceding  calendar  year,  taxable  under  this  chapter,  has  not  been 
returned  on  or  before  September  first  of  the  year  in  which  the  return 
is  required,  the  commissioner  shall  forthwith  notify  the  assessors  of  the 
town  where  the  property  is  taxable,  unless  there  is  within  his  knowl- 
edge a  reasonable  excuse  for  the  failure  of  the  taxpayer  to  file  the 
return.  Upon  making  any  assessment  under  section  forty-nine,  the 
assessors  shall  forthwith  notify  the  commissioner. 

The  object  of  these  sections  is  to  provide,  as  an  additional 
penalty  for  failure  to  file  a  return,  that  the  owner  of  securities 
yielding  taxable  income  shall  not  have  the  benefit  of  the  exemp- 
tion of  such  securities  from  taxation  at  the  local  rate  on  their 
capital  value.  He  is  not,  however,  subjected  to  a  tax  on  both 
principal  and  income,  but  merely  on  the  income  and  on  the 
excess  of  the  tax  on  principal  over  that  on  income. 

Effect  of  Unconstitutionality  of  Part  of  the  Chapter 

Section  54.  If  any  part,  subdivision  or  section  of  this  chapter 
shall  be  declared  unconstitutional,  the  validity  of  its  remaining  pro- 
visions shall  not  be  affected  thereby. 

The  object  of  the  foregoing  provision  was  to  avoid  all 
controversies  over  the  question  whether  all  of  the  provisions  of 
the  income  tax  act  were  intended  to  be  so  interwoven  that  the 
unconstitutionality  of  one  provision  therein  would  result  in  the 
upsetting  of  the  entire  act. 


502  Taxation  in  Massachusetts 

[G.  L.  c.  62,  §§  55-59 

Penalties 

Section  55.  If  any  person  required  to  file  a  return  under  this 
chapter  fails  to  file  the  return  within  the  time  prescribed  therein, 
the  sum  of  five  dollars  for  every  day  during  which  such  person  is 
in  default  shall  be  added  to,  and  become  part  of  the  tax,  as  an 
additional  tax;  but  the  commissioner  may,  in  his  discretion,  abate 
any  such  additional  tax  in  whole  or  in  part. 

Section  56.  Whoever  files  a  fraudulent  return,  and  whoever, 
having  failed  to  file  a  return  or  having  filed  an  incorrect  or  insuf- 
ficient return  without  reasonable  excuse  fails  to  file  a  return  within 
twenty  days  after  receiving  notice  from  the  commissioner  of  his 
delinquency,  shall  be  punished  by  a  fine  of  not  less  than  one  hundred 
nor  more  than  ten  thousand  dollars,  or  by  imprisonment  for  not  more 
than  one  year,  or  both,  and  shall  forfeit  his  right  to  hold  public  office 
anywhere  within  the  commonwealth  for  such  period,  not  exceeding 
five  years,  as  the  court  determines.  Any  person  filing  a  fraudulent 
return  of  interest  deduction  under  section  three,  or  giving  fraudulent 
information  under  said  section  or  section  four  to  the  commissioner  or 
an  income  tax  assessor  relative  to  any  deduction  given  by  section  two, 
shall  be  punished  as  provided  in  this  section. 

Section  57.  Any  individual,  partnership,  association,  trust  or 
corporation  failing  without  reasonable  excuse  to  file  a  return,  list  or 
report,  or  otherwise  give  information,  as  required  by  section  thirty- 
three,  shall  be  punished  by  a  fine  of  not  less  than  twenty -five  nor  more 
than  five  hundred  dollars. 

Section  58.  The  disclosure  by  the  commisioner,  or  by  the  state 
auditor,  or  by  any  deputy,  assistant,  clerk  or  assessor,  or  other 
employee  of  the  commonwealth,  or  of  any  city  or  town  therein,  to 
any  person  but  the  taxpayer  or  his  agent,  of  any  information  what- 
ever contained  in  or  set  forth  by  any  return  filed  under  this  chapter, 
other  than  the  name  and  address  of  the  person  filing  it,  except  in 
proceedings  to  collect  the  tax  or  by  proper  judicial  order,  or  for  the 
purpose  of  criminal  prosecution  under  this  chapter,  shall  be  punish- 
able by  a  fine  of  not  more  than  one  thousand  dollars,  or  by  imprison- 
ment for  not  more  than  six  months,  or  both,  and  by  disqualification 
from  holding  office  for  such  period,  not  exceeding  three  years,  as  the 
court  determines. 

Section  59.  Section  thirty-one  and  the  penalties  provided  by 
sections  fifty -five  and  fifty-six  shall  apply  to  individuals  and  corpora- 


Taxation  of  Incomes  503 

G.  L.  c.  62,  §§  59,  60] 

tions  acting  in  any  fiduciary  capacity.  In  the  case  of  a  corporation, 
the  penalty  may  be  imposed  on  the  corporation,  on  the  officers  whose 
duty  it  was  to  make  the  return,  or  on  both. 

Section  60.  In  the  case  of  a  partnership  one  or  more  members 
of  which  are  inhabitants  of  the  commonwealth  and  which  has  a  usual 
place  of  business  in  the  commonwealth,  the  penalties  imposed  by  this 
chapter  may  be  inflicted  upon  any  member  of  the  partnership  who  is 
an  inhabitant  of  the  commonwealth  and  who  has  any  active  part  in 
the  management  of  the  affairs  of  the  partnership,  and  if  there  is  no 
such  member,  upon  the  persons  in  charge  of  its  affairs  in  this  common- 
wealth. In  the  case  of  a  partnership,  association  or  trust,  the  bene- 
ficial interests  in  which  are  represented  by  transferable  shares,  the 
penalties  imposed  by  this  chapter  for  failure  to  file  a  return  may  be 
inflicted  upon  the  trustees,  managers  or  officers  whose  duty  it  was  to 
make  the  return. 

The  foregoing  provision  when  originally  enacted  in  1916 
was  the  first  instance  of  any  statute  imposing  a  penalty  (other 
than  the  risk  of  being  doomed)  upon  failure  by  an  individual 
taxpayer  to  file  a  tax  return.  The  harsh  operation  of  the  per- 
sonal property  tax  when  literally  enforced  rendered  the  imposi- 
tion of  a  penalty  for  failure  to  bring  in  a  list  out  of  the  question ; 
but  it  was  one  of  the  essential  elements  of  the  income  tax  law 
that  returns  should  be  compulsory,  and  that  a  reasonable  tax 
could  thus  be  enforced  with  equality. 

The  penalties  imposed  by  the  foregoing  sections  are  not  the 
only  ones  established  under  the  chapter  and  others  are  to  be 
found  in  other  sections. 

The  means  for  enforcing  the  filing  of  returns  under  the  income 
tax  law  may  be  summarized  as  follows : 

(1)  Failure  to  file  a  return  on  or  before  the  first  day  of 
March  may  be  punished  (a)  by  a  penalty  of  five  dollars 
a  day  (section  55),  (b)  by  liability  to  "dooming"  by  the 
commissioner  (section  36)  with  no  right  to  an  abate- 
ment by  the  commissioner  below  double  the  proper  tax 
(section  44)  and  no  remedy  whatever  in  the  superior 
court  (section  47)  unless  there  was  good  cause  for  the 
delay. 

(2)  Failure  to  file  a  return  on  or  before  the  first  day  of  May 


504  Taxation  in  Massachusetts 

[G.  L.  c.  62,  §  60 

may  be  redressed  by  a  petition  for  mandamus  to  com- 
pel the  filing  of  the  return  (section  31). 

(3)  Failure  to  file  a  return  before  the  first  day  of  September 
deprives  the  delinquent  of  the  exemption  from  the  tax 
on  capital  value,  and  the  securities  from  which  the  in- 
come was  received  remain  taxable  in  the  city  or  town 
in  which  the  owner  lives  at  their  capital  value  at  the 
local  rate  (section  49). 

(4)  Failure  to  file  a  return  after  special  notice  from  the 
commissioner,  or  the  filing  of  a  fraudulent  return,  may  be 
punished  (a)  by  a  fine  of  not  less  than  one  hundred  nor 
more  than  ten  thousand  dollars,  or  by  imprisonment  for 
not  more  than  one  year,  or  by  both,  and  by  forfeiture  of 
the  right  to  hold  public  office  for  not  more  than  five  years 
(section  56),  (b)  by  liability  to  "dooming"  at  double 
the  estimated  tax  (section  34)  with  no  right  to  an  abate- 
ment by  the  commissioner  below  double  the  proper  tax 
(section  44)  and  no  remedy  whatever  in  the  superior 
court  if  the  commissioner  refuses  to  make  any  abatement 
(section  47.) 

Although  the  statute  requires  a  return  in  every  case  in  which 
an  inhabitant  of  the  commonwealth  has  received  taxable  interest 
and  dividends,  where  the  amount  received  is  trifling,  as  when  a 
person  maintains  a  small  bank  balance  in  a  trust  company  or 
national  bank  and  occasionally  is  credited  with  a  dollar  or  less 
in  interest,  the  expense  of  collection  would  be  greater  than  the 
amount  received,  and  no  penalty  is  imposed  by  the  commissioner 
for  failure  to  file  a  return  of  taxable  interest  of  less  than  five  dol- 
lars in  the  case  of  an  individual  whose  total  income  from  all 
sources  is  less  than  two  thousand  dollars,  and  whose  gross  income 
from  business  is  less  than  two  thousand  dollars;  and  no  penalty 
is  imposed  upon  a  bank  or  other  party  for  failure  to  file  an  infor- 
mation return  with  respect  to  a  payment  of  interest  during  the 
year  of  less  than  five  dollars. 


CHAPTER    63 

TAXATION  OF  CORPORATIONS 

It  has  been  an  almost  universal  practice  throughout  the 
United  States  to  tax  corporations  by  methods  different  from 
those  applied  to  individual  citizens.  In  corporations  there  are 
five  elements  of  taxable  value,  each  of  which  may  be  made  a 
subject  of  taxation,  namely  (1)  franchise,  (2)  capital,  (3)  prop- 
erty, (4)  income,  (5)  shares  of  stock  in  the  hands  of  the  indivi- 
dual stockholders.  While  some  of  these  elements  represent  the 
same  basic  values,  they  are  so  far  distinct  that  they  may  be  sep- 
arately taxed  without  violating  the  constitutional  rights  of  the 
corporation  or  its  stockholders.  As  a  rule,  however,  the  states 
have  not  subjected  corporations,  and  especially  domestic  cor- 
porations, to  double  taxation,  but  their  efforts  have  been  directed 
toward  reaching  for  purposes  of  taxation  the  sum  by  which  the 
value  of  the  aggregate  capital  stock  of  a  corporation  exceeds  the 
value  of  such  of  its  real  and  personal  property  as  may  be  made 
subject  to  local  taxation.  Where  such  an  excess  exists  it  rep- 
resents the  estimate  of  the  trained  judgment  of  the  market  of 
the  value  of  the  earning  capacity  of  the  corporation — a  capitali- 
zation of  its  anticipated  income.  While  such  an  element  of  value 
is  never  taxed  in  the  case  of  an  individual  or  an  ordinary  part- 
nership, it  is  readily  reached  by  the  taxation  of  the  shares  in 
the  hands  of  the  individual  share  holders;  and  when  that  ob- 
vious and  simple  method  of  taxing  corporations  is  discarded 
because  of  the  difficulty  in  assessing  shares  in  the  hands  of  non- 
residents which  represent  property  within  the  state,  the  reach- 
ing of  this  corporate  excess  by  a  tax  on  the  franchise  or  the  cap- 
ital of  the  corporation  itself  follows  as  a  logical  and  natural 
step. 

TAXATION  OF  BANK  SHARES 

Rate  and  Place  of  Taxation 

Section  1.  All  shares  of  stock  in  banks,  whether  of  issue  or  not, 
existing  by  authority  of  the  United  States  or  of  any  law  of  the  com- 

505 


506  Taxation  in  Massachusetts 

[G.L.  c.  63,  §1 

monwealth  not  contained  in  chapters  one  hundred  and  sixty-seven  to 
one  hundred  and  seventy-four,  inclusive,  and  located  in  the  com- 
monwealth, shall  be  assessed  to  the  owner  thereof  in  the  town  where 
such  bank  is  located,  and  not  elsewhere,  in  the  assessment  of  state, 
county,  city  and  town  taxes,  whether  such  owner  is  a  resident  of  said 
town  or  not.  They  shall  be  assessed  at  their  fair  cash  value  on  April 
first,  after  deducting  therefrom  the  proportionate  part  of  the  value 
of  the  real  estate  belonging  to  the  bank,  at  the  same  rate  as  other 
moneyed  capital  in  the  hands  of  citizens  is  by  law  assessed.  The 
persons  appearing  from  the  books  of  the  banks  to  be  owners  of  shares 
at  the  close  of  the  business  day  last  preceding  April  first  shall  be 
deemed  to  be  the  owners  thereof. 

Prior  to  the  civil  war,  when  national  banks  were  unknown,  all 
incorporated  banks  doing  business  within  this  commonwealth 
were  subject  to  an  annual  tax  of  one-half  of  one  per  cent  of  their 
capital  stock,  payable  to  the  commonwealth,1  and  in  addition 
thereto  were  subject  to  local  taxation  on  account  of  their  real 
estate.2  The  shareholders  were  also  taxed  the  full  value  of  their 
shares  in  the  towns  where  they  respectively  dwelt,  without  any 
deduction  on  account  of  the  real  estate  of  the  bank,  as  the 
statute  authorizing  such  deduction  applied  only  to  manufac- 
turing corporations.3  The  bank  was  not  taxed  for  its  personal 
property,  for  the  same  reasons  that  other  corporations  were  not.4 
The  tax  on  the  capital  stock  was  sustained  as  an  excise,5  and 
the  property  taxes,  while  resulting  in  double  taxation,  did  not 
violate  any  constitutional  right. 

During  the  civil  war  national  banks  were  established  by  act 
of  Congress,  and  the  state  banks  were  driven  out  of  existence  by 
oppressive  taxation.6  The  national  banks  are  instrumentalities 
created  by  the  United  States  government  for  the  performance 
of  its  constitutional  functions,  and  it  is  not  within  the  power 
of  the  states  to  impose  taxes  upon  them  except  so  far  as  the 
imposition  of  taxes  upon  them  is  permitted  by  the  laws  under 
which  they  are  created,  and  with  such  limitations  and  qualifi- 

*8t  1812,  c.  32;  St.  1828,  c.  96,  §21;  R.  S.  c.  9,  §1,  G.  S.  c.  57,  §88. 
'Tremont  Bank  v.  Boston,  1  Cush.  142   (1848). 
"Tremont  Bank  v.  Boston,  1  Cush.   142   (1848). 

*Waltham  Bank  v.  Waltham,  10  Met.  334  (1845)  ;  Tremont  Bank  v.  Boston, 
1  Cush.  142  (1848). 

"Portland  Bank  v.  Apthorp,  12  Mass.  252   (1815). 
•Veazie  Bank  v.  Fenno,  8  Wall.  533  (1869). 


Taxation  of  Corporations  507 

G.  L.  c.  63,  §  1] 

cations  as  those  laws  prescribe.7  One  of  the  early  acts  of  Con- 
gress relating  to  national  banks  provided  that  nothing  therein 
should  prevent  the  inclusion  of  the  shares  in  such  banks  in  the 
valuation  of  the  property  of  the  owner  in  the  assessment  of 
taxes  imposed  under  state  authority  at  the  place  where  such 
bank  was  located  and  not  elsewhere,  but  not  at  a  greater  rate 
than  was  assessed  upon  other  moneyed  capital  in  the  hands  of 
individual  citizens  of  such  state.8  There  is  no  doubt  that  this 
act  of  Congress  was  intended  to  comprehensively  control  the 
subject  with  which  it  dealt  and  thus  to  furnish  the  exclusive 
rule  governing  the  state  taxation  of  these  federal  agencies.9 

Soon  after  the  establishment  of  the  national  banks,  provision 
was  made  by  the  legislature  of  this  commonwealth  for  the  taxa- 
tion of  shares  in  national  banks  in  the  cities  and  towns  where 
the  owners  of  the  shares  respectively  dwelt.10  It  was  held  by 
the  supreme  judicial  court  of  the  commonwealth  that  "place" 
in  the  act  of  Congress  meant  "state"  so  that  the  Massachusetts 
statute  was  in  conformance  with  the  act  of  Congress.11  The 
supreme  court  of  the  United  States  held  that  at  any  rate  a  per- 
son who  resided  in  the  same  city  as  that  in  which  the  bank  was 
located  could  not  complain  of  the  statute.12  Shortly  afterward 
Congress  passed  an  amendatory  act  providing  that  "place"  in 
the  original  statute  should  be  construed  to  mean  "state"  but 
that  shares  in  national  banks  owned  by  non-residents  of  the  state 
should  be  taxed  in  the  city  or  town  where  the  bank  was  located 
and  not  elsewhere;13  and  later  in  the  same  year  provision  was 
made  in  this  commonwealth  for  the  taxation  of  shares  of  non- 
residents of  the  commonwealth  in  the  city  or  town  in  which 
the  bank  was  located,  while  residents  remained  taxable  in  the 
towns  where  they  respectively  dwelt.14  Under  this  and  similar 
statutes  it  was  held  that  bank  shares  held  by  residents  of  the 
commonwealth  were  to  be  taxed  in  the  same  manner  as  other 

7  Van  Allen  v.  The  Assessors,  3  Wall.  573  (1869)  ;  Austin  v.  Aldermen  of 
Boston,  7  Wall,  694  (1868)  ;  Lionburger  v.  Rouse,  9  Wall.  468  (1869)  ;  Owensboro 
National  Bank  v.  Owensboro,  173  U.  S.  664  (1899)  ;  Rich  v.  Packard  National 
Bank,  138  Mass.  527   (1885). 

8U.  S.  St.  1864,  c.  106,  §41;  Rev.  St.  of  U.  S.  §5219. 

•Bank  of  California  v.  Richardson,  248  U.  S.  476  (1919). 

10  St.  1865,  c.  242. 

"Austin  v.  Aldermen  of  Boston,  14  Allen  359   (1867). 

"Austin  v.  The  Aldermen,  7  Wall.  694   (1868). 

18  U.  S.  St.  1868,  c.  7   (Feb.  10,  1868). 

"St.  1868,  c.  349   (June  11,  1868). 


508  Taxation  in  Massachusetts 

[G.  L.  c.  63,  §  l 

personal  property  and  subject  to  the  same  exceptions  and  quali- 
fications upon  the  general  rule  that  personal  property  is  to  be 
taxed  in  the  city  or  town  in  which  its  owner  resides.15  The 
present  method  of  taxing  bank  shares  was  adopted  in  1873  and 
since  that  time  there  has  been  little  change  in  the  statutes  re- 
lating to  the  subject.16 

The  portion  of  the  national  banking  act  which  has  caused 
the  greatest  uncertainty  is  the  provision  limiting  the  taxation 
of  bank  shares  to  the  rate  assessed  upon  other  moneyed  capital  in 
the  hands  of  individual  citizens.  It  has  been  provided  since  1868 
that  assessors  of  cities  and  towns  in  which  a  national  bank  is 
located  shall  in  ascertaining  the  tax-rate  for  each  year  omit 
from  the  valuation  the  value  of  all  shares  in  such  banks  held  by 
non-residents  of  the  city  or  town;17  and  it  has  been  held  upon 
great  deliberation  that  such  a  provision  does  not  conflict  with 
the  requirements  of  the  act  of  Congress.18  It  is  further  held 
that  the  requirement  that  the  rate  shall  not  exceed  that  on  other 
moneyed  capital  in  the  state  does  not  mean  that  the  tax  rate 
of  the  town  having  the  lowest  rate  of  all  towns  in  the  common- 
wealth must  not  be  exceeded,  but  that  in  each  town  its  own 
rate  is  the  limit.19 

The  real  difficulty  however  has  been  with  respect  to  the 
meaning  of  "moneyed  capital."  It  is  now  well  settled  that  it 
is  limited  in  its  meaning  to  capital  engaged  in  earning  money 
by  dealing  in  money20  and  that  it  does  not  mean  capital  in  the 
form  of  money  invested  by  individuals  in  other  forms  of  business 
or  in  the  stock  of  corporations  generally.  It  has  no  application 
to  the  stock  of  insurance  companies21  or  of  public  service  com- 
panies or  of  manufacturing  or  business  corporations.22  So  far  as 
the  stock  of  corporations  is  concerned,  it  merely  requires  that 

"Murray  v.  Berkshire  Life  Insurance  Co.,  104  Mass.  586  (1870)  ;  Goldsbury 
v.  Warwick,  112  Mass.  384   (1873)  ;  Revere  v.  Boston,  123  Mass.  375   (1877). 

16  The  present  method  of  taxing  bank  shares  was  first  adopted  by  St.  1871, 
c.  390.  This  statute  was  repealed  by  St.  1872,  c.  321,  and  return  made  to  the  old 
method,  but  by  St.  1873,  c.  315,  the  present  method  was  permanently  resorted  to. 

17  G.  L.  c.  59,  §22,  supra,  page  252. 

18  Providence  Institution  for  Savings  v.  Boston,   101  Mass.  575    (1869). 
18  Providence  Institution  for  Savings  v.  Boston,  101  Mass.  575   (1869). 

20  Wellington  First  National  Bank  v.  Chapman,  173  U.  S.  205   (1899). 

2lPeople  v.  The  Commissioners,  4  Wall.  244  (1866);  Aberdeen  Bank  v. 
Chehalis  County,  166  U.  S.  440   (1897). 

"Mercantile  National  Bank  v.  New  York,  121  U.  S.  138  (1887)  ;  Talbott  v. 
Silver  Bow  County,  139  U.  S.  438  (1891). 


Taxation  of  Corporations  509 

G.  L.  c.  63,  §  l] 

the  stock  of  national  banks  shall  not  be  taxed  at  a  higher  rate 
than  the  stock  of  other  corporations  engaged  in  the  business  of 
banking.23  Even  with  respect  to  corporations  engaged  in  the  bus- 
iness of  banking,  a  discrimination  is  lawful  if  made  in  favor  of 
banks  of  a  class  whch  do  not  compete  with  national  banks,  such 
as  savings  banks,24  or  trust  companies  which  confine  themselves 
to  their  original  function  of  administering  trusts.25  It  has  how- 
ever been  recently  held,  contrary  to  the  previous  general  under- 
standing of  the  law,  that  the  restriction  in  the  statute  includes 
something  besides  shares  in  banking  corporations  and  other 
corporations  that  enter  into  direct  competition  with  the  national 
banks;  and  that  it  includes  the  investment  by  individuals  in 
money  at  interest  and  other  evidences  of  indebtedness  such  as 
normally  enter  into  the  business  of  banking.26 

The  law  does  not  require  that  the  taxation  of  shares  of  na- 
tional banks  and  of  corporations  doing  a  banking  business  and 
chartered  by  the  states  be  identical,  provided  the  tax  on  the 
shares  in  the  state  banks  is  equally  severe;27  but  any  real  dis- 
crimination against  the  national  banks  is  illegal,  whether  it  con- 
sists of  a  statute  allowing  deductions  to  stockholders  in  state 
banks  which  are  not  allowed  in  the  case  of  national  banks28  or 
a  systematic  and  intentional  undervaluation  of  stock  in  state 
banks  while  stock  in  national  banks  is  assessed  at  its  full  value.29 

23 National  Bank  of  Redemption  v.  Boston,  125  U.  S.  60  (1888)  ;  Palmer  v. 
McMahon,  133  U.  S.  660  (1890);  National  Bank  of  Commerce  v.  Seattle,  166 
U.  S.  463  (1897). 

"Mercantile  National  Bank  v.  New  York,  121  U.  S.  138  (1887)  ;  Davenport 
National  Bank  v.  Davenport,  123  U.  S.  83  (1887)  ;  National  Bank  of  Redemption 
v.  Boston,  125  U.  S.  60   (1888). 

25  Mercantile  National  Bank  v.  New  York,  121  U.  S.  138  (1887)  ;  Jenkins  v. 
Neff,  186  U.  S.  230  (1902). 

26  Merchants  National  Bank  v.  Richmond,  U.S.  (1921).  The  effect  of  this 
decision  would  not  be  to  hold  the  Massachusetts  statute  for  taxing  national  bank 
stock  unconstitutional,  for  the  statute  follows  the  wording  of  the  act  of  Congress ; 
but  it  might  limit  the  tax  to  the  rate  collected  on  money  at  interest  in  the  hands 
of  individuals,  namely  6%  of  the  income.    G.  L.  c.  62,  §1    (a),  supra,  page  437. 

"Mercantile  National  Bank  v.  New  York,  121  U.  S.  138  (1887)  ;  San  Fran- 
cisco National  Bank  v.  Dodge,  197  U.  S.  70  (1905)  ;  Covington  v.  Covington  First 
National  Bank,  198  U.  S.  100  (1905)  ;  A.  J.  Tower  Co.  v.  Commonwealth,  223 
Mass.  371   (1916). 

28  New  York  v.  Weaver,  100  U.  S.  539  (1879)  ;  Evansville  Bank  v.  Britton, 
105  U.  S.  322  (1881);  Whitbeck  v.  Mercantile  National  Bank,  127  U.  S.  193 
(1888);  Palmer  v.  McMahon,  133  U.  S.  660  (1890);  San  Francisco  National 
Bank  v.  Dodge,  197  U.  S.  70  (1905). 

29Pelton  v.  Commercial  National  Bank,  101  U.  S.  143  (1879)  ;  Whitbeck  v. 
Mercantile  National  Bank,  127  U.  S.  193  (1888);  Albuouerque  First  National 
Bank  v.  Albuquerque,  208  U.  S.  548   (1908). 


510  Taxation  in  Massachusetts 

[G.  L.  c.  63,  §  l 

It  is  well  settled  that  shares  in  a  national  bank  located  in 
another  state  owned  by  a  resident  of  this  commonwealth  cannot 
be  taxed  by  the  city  or  town  in  which  the  owner  resides.30  Shares 
in  a  national  bank  located  in  this  commonwealth  are  taxable 
only  for  state,  county,  city  or  town  purposes  and  are  not  subject 
to  taxation  for  the  benefit  of  incorporated  subordinate  districts 
in  which  the  owners  of  the  shares  reside  whether  the  district  is 
in  the  same  town  in  which  the  bank  is  located31  or  in  a  different 
one.32  The  aggregate  capital  stock  of  a  national  bank  cannot  be 
taxed  to  the  bank;  the  shares  can  be  assessed  only  as  the  prop- 
erty of  the  individual  stockholders.33  In  assessing  the  shares  it  is 
not  necessary  to  deduct  the  proportionate  part  of  the  value  of  the 
shares  which  represents  property  of  the  bank  which  the  state 
could  not  tax  directly,  such  as  United  States  bonds.34  When 
a  national  bank  holds  stock  in  a  state  bank,  the  national  bank 
cannot  be  taxed  by  the  state  as  a  stockholder  of  the  state  bank; 
but  the  stock  of  the  state  bank  may  be  considered  as  an  asset  of 
the  national  bank  in  valuing  the  shares  of  the  national  bank 
for  the  purpose  of  taxing  the  stockholders.  When  however  one 
national  bank  holds  stock  in  another  national  bank,  the  former 
bank  may  be  taxed  as  a  stockholder  of  the  latter ;  but  the  state 
cannot  at  the  same  time  include  such  stock  ownership  as  an  asset 
of  the  former  bank  in  valuing  its  shares  for  taxation  to  its 
stockholders,  since  in  such  case  the  same  property  would  be 
taxed  twice.35 

The  "fair  cash  value"  of  the  shares  is  the  market  value,  and 
not  the  value  to  be  deduced  by  a  comparison  of  the  assets  and 
liabilities.  If  there  is  evidence  of  the  market  price,  evidence  of 
the  value  so  deduced  is  not  controlling30  or  even  important.37  It 
is  to  be  noted  that  under  the  Massachusetts  statute  the  real  es- 
tate of  a  national  bank  is  subject  to  local  taxation,  and  the  value 
of  the  real  estate  is  deducted  from  the  value  of  the  shares  in 

30  Flint  v.  Aldermen  of  Boston,  99  Mass.  141    (1868). 

81  Rich  v.  Packard  National  Bank,  138  Mass.  527    (1885). 

"Little  v.  Little,  131  Mass.  367   (1881). 

83Owensboro  National  Bank  v.  Owensboro,  173  U.  S.  664   (1899). 

"Van  Allen  v.  Assessors,  3  Wall.  573  (1865)  ;  People  v.  The  Commissioners, 
4  Wall.  244  (1866)  ;  Evansville  National  Bank  v.  Britton,  105  U.  S.  322  (1881)  ; 
Palmer  v.  McMahon,  133  U.  S.  660  (1890). 

35  Bank  of  California  v.  Richardson,  248  U.  S.  476  (1919). 

36  National  Bank  of  Commerce  v.  New  Bedford,  155  Mass.  313   (1891). 
"National  Bank  of  Commerce  v.  New  Bedford,  175  Mass.  257  (1900). 


Taxation  of  Corporations  511 

G.  L.  c.  63,  §§  1,  2,  3] 

taxing  the  shares.  The  valuation  of  bank  shares  is  made 
by  the  local  assessors  and  the  remedy  by  appeal  to  the  county 
commissioners  or  to  the  superior  court  is  the  same  as  in  the 
case  of  ordinary  local  taxation.38  The  bank  and  not  the 
shareholders  is  the  proper  party  to  file  the  list,  to  petition  for 
abatement  and  to  take  an  appeal;39  but  the  list  need  not  be  a 
list  of  its  property  as  required  in  ordinary  local  taxation  as  a 
prerequisite  to  an  abatement;  a  list  of  its  shares  is  all  that  is 
required.40 

The  right  of  the  states  to  tax  the  real  estate  of  national 
banks  is  expressly  established  by  the  federal  statutes,  and  there 
would  seem  to  be  no  valid  constitutional  objection  to  the  taxa- 
tion of  the  shares  at  their  full  value  and  taxation  of  the  real 
estate  as  well.41  The  states  however  have  no  power  to  tax  the 
personal  property  of  a  bank,  tangible  or  intangible,  even  if  the 
bank  is  in  the  hands  of  a  receiver  and  its  shares  are  of  no  value,42 
or  to  tax  its  franchise,  or  the  aggregate  value  of  its  shares  in 
excess  of  its  tangible  assets.43  A  state  may  tax  deposits  in  na- 
tional banks  as  the  property  of  the  individual  depositors,  pro- 
vided the  tax  is  not  levied  in  such  a  way  as  to  discriminate  against 
deposits  in  national  banks  as  compared  with  other  like  property.44 

Collection  of  Tax 

Section  2.  Every  such  bank  shall  pay  the  tax  so  assessed  to  the 
collector  or  other  person  authorized  to  receive  it  at  the  time  when 
other  taxes  in  the  town  become  due.  If  not  so  paid,  said  tax,  with 
interest  thereon  at  the  rate  of  twelve  per  cent  per  annum  from  the 
day  when  due,  may  be  recovered  from  said  bank  in  contract  by  the 
collector  of  such  town. 

Section  3.  The  shares  of  such  banks  shall  be  subject  to  the  tax 
paid  thereon  by  the  corporation  or  by  its  officers,  and  the  corporation 
and  its  officers  shall  have  a  lien  on  all  shares  in  such  bank  and  on  all 

38  National  Bank  of  Commerce  v.  New  Bedford,  155  Mass.  313   (1891). 

"National  Bank  of  Commerce  v.  New  Bedford,  155  Mass.  313  (1891)  ;  Adams 
v.  New  Bedford,  155  Mass.  317    (1891). 

40  National  Bank  of  Commerce  v.  New  Bedford,  155  Mass.  313   (1891). 

"Commercial  National  Bank  v.  Chambers,  182  U.  S.  556  (1901).  See,  how- 
ever, Albuquerque  First  National  Bank  v.  Albuquerque,  208  U.  S.  548   (1908). 

42  Rosenblatt  v.  Johnston,  104  U.  S.  462   ( 1881 ) . 

43  Louisville  Third  National  Bank  v.  Stone,  174  U.  S.  432  (1899)  ;  Owensboro 
National  Bank  v.  Owensboro,  173  U.  S.  664  (1899). 

"Clement  National  Bank  v.  Vermont,  231  U.  S.  120   (1913). 


512  Taxation  in  Massachusetts 

[G.  L.  c.  63,  §§3,  4 
rights  and  property  of  the  shareholders  in  the  corporate  property  for 
the  payment  of  said  taxes. 

The  statutes  in  effect  require  the  tax  to  be  collected  through 
the  bank,  by  the  town  where  the  bank  is  located  and  at  the  rate 
prevailing  in  that  town,  but  the  proceeds  are  distributed  as  if 
the  shares  were  taxable  in  the  cities  or  towns  where  the  owners 
of  the  shares  dwell,  in  the  same  manner  as  other  intangible  per- 
sonal property  was  taxable  before  the  enactment  of  the  income 
tax  act.  Although  the  bank  is  required  to  pay  the  tax,  it  makes 
that  payment  not  in  its  own  right,  but  as  agent  of  the  share- 
holders.   The  tax  is  not  upon  the  bank  but  upon  the  shareholders.1 

There  can  be  no  doubt  that  a  state  may  require  a  national 
bank  to  pay  the  tax  assessed  upon  its  shareholders,  if  the  bank 
may  reimburse  itself  by  collecting  the  proportionate  amount  of 
the  tax  from  each  shareholder.2  Such  a  method  of  collecting 
taxes  on  shares  in  corporations  was  in  common  use  when  the 
national  banking  act  was  first  enacted,  and  it  is  not  to  be  sup- 
posed that  Congress  intended  to  prohibit  the  states  from  using 
this  well  recognized  method  of  collection.3 

Distribution  of  the  Tax 

Section  4.  The  cashier  of  every  such  bank  shall  make  and  de- 
liver to  the  assessors  of  the  town  where  it  is  located,  on  or  before  April 
tenth  in  each  year,  a  statement  on'  oath  showing  the  name  of  each 
shareholder,  with  his  residence  and  the  number  of  shares  belonging  to 
him  at  the  close  of  the  business  day  last  preceding  April  first,  as  the 
same  then  appeared  on  the  books  of  said  bank.  If  the  cashier  fails  to 
make  such  statement,  said  assessors  shall  forthwith  obtain  a  list  of  the 
names  and  residences  of  shareholders  and  of  the  number  of  shares 
belonging  to  each.  They  shall,  forthwith,  upon  obtaining  such  state- 
ment or  list,  transmit  a  copy  thereof  to  the  commissioner ;  and  shall, 
immediately  upon  the  determination  of  the  tax  rate  in  such  town 
for  the  year,  give  to  the  commissioner  written  notice  thereof,  and 

■A.  J.  Tower  Co.  v.  Commonwealth,  223  Mass.  371    (1916). 

2  Louisville  First  National  Bank  v.  Kentucky,  9  Wall.  353  (1869)  ;  Lionberger 
v.  Rouse,  9  Wall.  468  (1869)  ;  Waite  v.  Dowley,  94  U.  S.  527  (1876)  ;  Aberdeen 
First  National  Bank  v.  Chehalis  County,  166  U.  S.  440  (1897);  Covington  v. 
Covington  First  National  Bank,  198  U.  S.  100  (1905)  ;  Citizens  National  Bank 
v.  Kentucky,  217  U.  S.  443  (1910). 

•Louisville  First  National  Bank  v.  Kentucky,  9  Wall.  353    (1869). 


Taxation  of  Corporations  513 

G.  L.  c.  63,  §§  4-7] 

also  of  the  amount  assessed  by  them  upon  the  shares  of  each  bank 

located  therein. 

Section  5.  Said  commissioner  shall  thereupon  determine  the 
amount  of  the  tax  assessed  upon  shares  in  each  of  said  banks  which 
would  not  be  liable  to  taxation  in  said  town  according  to  chapter 
fifty-nine ;  and  such  amount  shall  be  a  charge  against  said  town.  He 
shall,  in  like  manner,  determine  the  amount  of  tax  so  assessed  upon 
shares  which  would  be  so  liable  to  taxation  in  each  town  other  than 
that  where  the  bank  is  located ;  and  such  amount  shall  be  a  credit  to 
such  town.  He  shall  forthwith  give  written  notice  by  mail  or  at  their 
office  to  the  assessors  of  each  town  thereby  affected  of  the  aggregate 
amount  so  charged  against  and  credited  to  it;  and  they  may  within 
ten  days  after  notice  of  such  determination  appeal  therefrom  to  the 
board  of  appeal  from  decisions  of  the  commissioner. 

Section  6.  At  the  expiration  of  ten  days  after  said  notice  or 
upon  being  informed  of  the  decision  of  the  board  of  appeal,  the  com- 
missioner shall  certify  to  the  state  treasurer  the  aggregate  amount 
of  charges  against,  and  credits  to,  each  town,  as  so  determined ;  and 
the  treasurer  shall  thereupon  withhold  out  of  any  sums  payable  by 
the  commonwealth  to  any  town  against  which  a  charge  is  certified, 
the  amount  of  such  charge,  and  shall  allow  or  pay  over  to  each  town  to 
which  a  credit  is  certified  the  amount  of  such  credit. 

Section  7.  In  such  adjustment  of  charges  and  credits,  one  per 
cent  upon  the  amount  assessed  and  collected  by  each  town  shall  be 
allowed  to  it  for  the  expense  of  assessment  and  collection.  No  town 
shall  in  any  year  be  allowed  credits  or  payments  under  this  chapter 
until  the  assessors  have  complied  with  its  requirements  and  with 
section  twenty-two  of  chapter  fifty-nine,  relative  to  the  taxation  of 
bank  shares.  No  bank,  the  shares  in  which  are  liable  to  taxation  under 
section  one,  shall  be  liable  thereto  under  section  fifty-eight,  nor  shall 
the  shareholders  be  liable  to  taxation  for  their  shares  therein  for 
any  purpose,  except  under  this  chapter. 

The  object  of  the  foregoing  statutes  is  to  ensure  the  appli- 
cation of  the  principle  that  intangible  property  is  taxable  at  the 
domicile  of  the  owner,  which  was  firmly  imbedded  in  the  law 
when  this  method  of  taxing  bank  shares  was  established,  and 
while  the  shares  are  taxed  in  the  place  where  the  bank  is  situ- 
ated, in  literal  compliance  with  the  requirements  of  Congress, 
the  towns  of  the  domicile  of  the  shareholders  receive  the  benefit 


514  Taxation  in  Massachusetts 

[G.  L.  c.  63,  §§  8,  9  inc. 

of  the  tax.  It  is  a  peculiar  circumstance  that  bank  shares'  are 
now  the  only  remaining  class  of  intangible  personal  property 
to  which  the  principle  of  mobilia  sequuntur  personam  still  ap- 
plies. 

The  list  of  shareholders  required  by  section  four  is  the  only 
list  which  the  bank  is  obliged  to  file  as  a  prerequisite  to  an  ap- 
plication for  abatement  of  tjie  tax  on  its  shares.1  The  pro- 
vision at  the  end  of  section  seven  exempting  the  bank  and  the 
shareholders  from  other  taxation  cannot  be  construed  to  require 
the  deduction  of  the  value  of  shares  in  national  banks  owned 
by  a  domestic  business  corporation  from  the  aggregate  value  of 
its  capital  stock  in  determining  the  tax  on  its  corporate  fran- 
chise.2 

Establishment  of  Exemptions 

Section  8.  The  amount  paid  into  the  treasury  annually,  under 
this  chapter,  on  account  of  shares  in  banks,  which  on  April  first  are 
the  absolute  property  of  any  savings  bank  liable  to  taxation  under 
section  eleven,  shall  be  deducted  from  the  taxes  of  such  savings 
bank  at  the  next  payment  by  it  to  the  commonwealth  after  the  col- 
lection of  the  taxes  on  such  bank  shares.  The  commissioner  may  re- 
quire a  statement  of  all  shares  so  owned  by  any  savings  bank,  in  a 
form  aproved  by  him,  signed  and  sworn  to  by  the  treasurer  or  like 
financial  officer  thereof.  From  such  statement  and  other  evidence, 
and  subject  to  appeal  by  such  corporation  under  section  seventy-one, 
he  shall  determine  the  amounts  to  be  deducted,  and  certify  the  same 
to  the  state  treasurer  upon  the  final  determination  thereof;  but  the 
amount  so  to  be  deducted  from  the  tax  payable  by  any  savings  bank 
shall  not  exceed,  in  any  year,  the  amount  of  the  tax  assessed  on 
account  of  that  portion  of  its  deposits  invested  in  shares  in  such 
banks. 

Section  9.  The  commissioner  shall  annually,  as  soon  as  may  be 
after  the  first  Monday  in  November,  certify  to  the  state  treasurer  the 
amounts  assessed  and  collected  for  the  year  in  respect  of  shares  in 
such  banks  owned  absolutely  by  any  society  or  institution  of  the  classes 
specified  in  clauses  third  and  fourth  of  section  five  of  chapter  fifty- 
nine,  and  the  treasurer  shall  thereupon  pay  over  such  amounts  to 
such  society  or  institution  owning  such  shares. 

'National  Bank  of  Commerce  v.  New  Bedford,  155  Mass.  313  (1891). 
2  A.  J.  Tower  Co.  v.  Commonwealth,  ,223  Mass.  371    (1916). 


Taxation  of  Corporations  515 

G.  L.  c.  63,  §§10,  llinc] 

Section  10.  The  assessors  of  a  town,  upon  request  of  any  person 
resident  therein  who  is  the  owner  of  any  shares  in  such  banks  which, 
under  clauses  seventeenth  and  eighteenth  of  section  five  of  chapter 
fifty-nine  would  be  entitled  to  exemption  from  taxation,  shall  give  to 
him  a  certificate  stating  such  fact;  and  the  town  treasurer,  upon 
request  therefor,  and  the  deposit  with  him  of  such  certificate,  shall 
pay  to  such  owner  the  amount  so  collected  in  respect  of  such  shares, 
immediately  upon  the  allowance  made  to  such  town  under  this 
chapter. 

The  object  of  the  foregoing  statutes  is  to  provide  the  ma- 
chinery by  which  certain  classes  of  individuals  and  corporations, 
which  are  exempt  from  direct  taxation  on  other  property,  may 
establish  their  exemption  with  respect  to  shares  in  national 
banks.  All  shares  in  national  banks,  by  whomsoever  owned,  are 
taxed  in  the  first  instance;  but  the  tax  is  refunded  to  the  indi- 
viduals and  corporations  described  in  the  foregoing  sections. 

SAVINGS   BANKS,    SAVINGS    DEPARTMENTS    OF 
TRUST  COMPANIES  AND  CO-OPERATIVE 

BANKS 

Excise  on  Savings  Banks  and  Savings  Departments 

Section  11.  Every  savings  bank  and  every  trust  company  hav- 
ing a  savings  department,  as  defined  respectively  in  chapters  one 
hundred  and  sixty-eight  and  one  hundred  and  seventy-two,  shall  pay 
to  the  state  treasurer,  on  acount  of  its  depositors,  an  annual  tax  of 
one  half  of  one  per  cent,  which  shall  be  levied  on  the  amount  of  the 
deposits  in  a  savings  bank,  and  on  the  amount  of  such  of  the  deposits 
in  the  savings  department  of  a  trust  company  as  do  not  exceed  in 
amount  the  limits  imposed  upon  deposits  in  savings  banks  by  section 
thirty-one  of  chapter  one  hundred  and  sixty-eight,  to  be  assessed  and 
paid  as  follows:  one-fourth  of  one  per  cent  shall  be  assessed  by  the 
commissioner  upon  the  average  amount  of  such  deposits  for  the  six 
months  preceding  May  first,  and  paid  on  or  before  May  twenty- 
fifth  ;  and  a  like  percentage  shall  be  assessed  upon  the  average  amount 
of  such  deposits  for  the  six  months  preceding  November  first,  and 
paid  on  or  before  November  twenty-fifth. 

Prior  to  1862  there  were  no  special  provisions  of  law  relat- 
ing to  the  taxation  of  savings  banks,  and  savings  banks,  like 


516  Taxation  in  Massachusetts 

[G.  L.  c.  63,  §  12 

other  corporations,  were  taxed  for  their  real  estate  in  the  town 
where  it  was  situated  but  were  not  taxed  for  their  personal  prop- 
erty; and  the  depositors  were  taxed  for  the  amounts  of  their 
deposits  as  "money  at  interest"  in  the  towns  where  they  re- 
spectively dwelt.1  In  1862  a  statute  was  enacted,  imposing 
an  annual  tax  upon  savings  banks  to  be  paid  to  the  common- 
wealth based  upon  the  amount  of  the  deposits,  and  exempting 
the  deposits  from  other  taxation.  The  validity  of  this  statute 
was  contested  in  the  courts  and  it  was  held  that  it  could  not  be 
sustained  as  a  property  tax;  but  as  an  excise  on  the  franchise 
of  the  bank  it  was  valid,  and  the  amount  of  the  deposits  was 
held  to  be  a  proper  measure  of  the  value  of  the  franchise.2 

The  "deposits"  upon  which  the  tax  is  based  include  only  the 
amounts  deposited  in  the  bank  and  dividends  thereon  payable  to 
depositors  and  do  not  include  the  guarantee  fund  and  undivided 
profits ;  in  other  words  the  tax  is  based  upon  the  amount  credited 
to  depositors  and  not  upon  the  market  value  of  the  assets  of 
the  bank.3 

Exemption  of  Portions  of  Deposits 

Section  12.  So  much  of  said  deposits  shall  be  exempt  from  taxa- 
tion under  the  preceding  section  as  is  invested  in  any  of  the  following : 

(a)  Seal  estate  used  for  banking  purposes. 

(&)  Loans  secured  by  mortgage  of  real  estate  taxable  in  this 
commonwealth. 

(c)  Real  estate  the  title  of  which  has  been  acquired  by  fore- 
closure or  purchase  under  clause  twelfth  of  section  fifty-four  of  chap- 
ter one  hundred  and  sixty-eight,  for  five  years  after  the  title  thereof 
is  vested  in  the  corporation. 

(d)  Bonds  or  certificates  of  indebtedness  of  the  United  States. 

(e)  Bonds  or  certificates  of  indebtedness  of  the  commonwealth 
issued  after  January  first,  nineteen  hundred  and  six. 

(/)  Bonds,  notes  and  certificates  of  indebtedness  of  any  county, 
fire  district,  water  district,  light  district,  improvement  district,  city  or 
town  in  the  commonwealth,  issued  on  or  after  May  first,  nineteen 
hundred  and  eight,  stating  on  their  face  that  they  are  exempt  from 
taxation  in  Massachusetts. 

1  Worcester  County  Institution  for  Savings  v.  Worcester,  10  Cush.  128  (1852). 

2  Commonwealth  v.  The  People's  Five  Cents  Savings  Bank,  5  Allen  428  ( 1862) . 
•Suffolk  Savings  Bank,  Petitioner,  151  Mass.  103   (1890). 


Taxation  of  Corporations  517 

G.  L.  c.  63,  §§  12,  13] 

(g)  Shares  of  stock  of  trust  companies  organized  under  the  laws 
of  the  commonwealth. 

After  the  enactment  of  the  excise  tax  on  savings  banks  the 
personal  property  of  such  banks  continued  to  be  exempt  from 
direct  taxation,1  but  the  real  estate  of  such  banks  has  remained 
taxable  in  the  town  in  which  it  is  situated.  So  far  as  the  consti- 
tutional rights  of  the  bank  are  concerned,  as  the  tax  is  an  excise 
and  not  a  property  tax,  the  state  is  not  bound  to  grant  a  deduc- 
tion based  on  the  investment  of  the  deposits  in  property  which 
is  itself  taxed  or  in  property  which  the  state  has  no  power  to  tax, 
such  as  United  States  bonds;2  but  the  state  has  consistently 
attempted  to  deal  fairly  with  institutions  for  savings  and  has 
allowed  the  deductions  set  forth  in  section  twelve,  with  a  view 
to  avoiding  what  in  effect  amounts  to  double  taxation  or  to  the 
taxation  of  securities  which  would  be  exempt  in  the  hands  of  in- 
dividual investors.  So  far  as  these  deductions  relate  to  property 
which  is  taxed  in  some  other  way,  since  they  do  not  constitute 
the  grant  of  an  exemption,  but  an  attempt  to  avoid  double  tax- 
ation, they  are  liberally  construed;3  and  when  a  savings  bank 
erects  a  building  of  more  than  one  story  in  height,  and  occupies 
only  the  first  floor  for  banking  purposes,  and  rents  the  remain- 
ing portion  of  the  building  to  various  tenants,  if  it  appears  that 
the  area  of  the  building  is  not  unnecessarily  great,  and  that  the 
business  of  the  bank  cannot  be  conveniently  conducted  on  dif- 
ferent floors,  the  deduction  for  the  purposes  of  the  excise  tax 
should  be  based  on  the  value  of  the  entire  building.4 

In  the  case  of  the  savings  department  of  a  trust  company,  the 
deductions  are  to  be  computed  pro  rata  between  the  amount  of 
deposits  subject  to  the  excise  tax  and  the  amount  of  those  which, 
because  they  exceed  the  limitations  upon  deposits  in  savings 
banks,  are  not  subject  to  the  excise  tax.5 

Returns  of  Amount  of  Deposits 

Section  13.  Every  savings  bank  and  every  trust  company  hav- 
ing a  savings  department  shall  semi-annually,  on  or  before  May  tenth 

1  G.  L.  c.  59,  §5,  cl.  16,  supra,  page  208. 

Commonwealth  v.  Provident  Institution  for  Savings,  12  Allen  312   (1866)  ; 
Provident  Institution  v.  Massachusetts,  6  Wall.  611   (1867). 
•Suffolk  Savings  Bank,  Petitioner,  149  Mass.  1    (1889). 
'Suffolk  Savings  Bank,  Petitioner,  149  Mass.  1   (1889). 
•Old  Colony  Trust  Co.  v.  Commonwealth,  220  Mass.  409   (1915). 


518  Taxation  in  Massachusetts 

[G.  L.  c.  63,  §§  13-15 
and  November  tenth,  make  a  return  to  the  commissioner,  signed  and 
sworn  to  by  its  president  and  treasurer,  of  the  amount  of  its  deposits 
if  a  savings  bank,  and  if  a  trust  company  of  the  amount  of  deposits 
in  its  savings  department,  on  the  first  day  of  each  of  said  months, 
and  of  the  average  amount  of  such  deposits  for  the  six  months  pre- 
ceding each  of  said  last  mentioned  days.  A  corporation  neglecting 
to  make  such  return  shall  forfeit  fifty  dollars  for  each  day  during 
which  such  neglect  continues.  If  it  wilfully  makes  a  false  statement 
in  such  return  it  shall  be  punished  by  a  fine  of  not  less  than  five 
hundred  nor  more  than  five  thousand  dollars. 

There  is  nothing  in  this  section  of  the  statutes  which  re- 
quires the  commissioner  to  accept  as  true  a  return  filed  in  accord- 
ance with  its  provisions,  or  which  precludes  him  from  ascer- 
taining the  truth  through  some  other  source  of  information.1 

Tax  Exempt  Investments  in  Savings  Department  Not  Basis 
of  Deduction  from  Other  Taxes 

Section  14.  No  investment  of  deposits  in  the  savings  department 
of  any  trust  company  exempt  in  any  year  from  the  tax  imposed  by 
section  eleven  shall  be  in  the  same  year  a  basis  for  any  deduction 
allowed  in  computing  any  other  tax  which  trust  companies  are  re- 
quired by  law  to  pay. 

Exemption  of  Deposits  from  Other  Taxes 

Section  15.  All  deposits  taxed  under  section  eleven  shall  be 
otherwise  exempt  from  taxation  in  any  year  in  which  said  tax  is  paid. 

One  of  the  essential  objects  of  the  original  act  imposing  an 
excise  on  savings  banks  was  to  provide  that  the  deposits  should 
not  be  subject  to  local  taxation  as  money  at  interest  in  the  hands 
of  the  depositors.  The  deposits  in  savings  banks  incorporated 
in  this  commonwealth  have  continued  to  be  exempt  from  any 
taxation  other  than  the  tax  on  the  franchise  of  the  bank  by  which 
they  are  indirectly  reached;1  and  the  dividends  on  such  deposits 
are  not  subject  to  the  state  income  tax.2  In  1909  provision  was 
made  for  the  taxation  of  the  savings  departments  of  trust  com- 

'Old  Colony  Trust  Co.  v.  Commonwealth,  220  Mass.  409,  413   (1915). 
1  Deposits  are  not  subject  to  local  taxation,  G.  L.  c.  59,  §5,  el.  28,  supra, 
page  214. 

2G.  L.  c.  62,  §1,  subsection  (a)  clause  first,  supra,  page  439. 


Taxation  of  Corporations  519 

G.  L.  c.  63,  §§  15,  16] 

panies  in  the  same  manner  as  savings  banks;3  but  as  there  is  no 
such  limitation  upon  the  amount  which  may  be  deposited  by  any 
one  individual  in  the  savings  department  of  a  trust  company 
as  is  applicable  to  savings  banks,  this  enactment  gave  the  trust 
companies  an  advantage  over  the  savings  banks;  and  in  1911 
it  was  provided  that  the  franchise  tax  and  the  corresponding 
exemption  from  direct  taxation  should  thereafter  apply  only 
to  such  of  the  deposits  in  savings  departments  as  did  not  exceed 
the  limit  placed  by  law  upon  the  deposits  in  savings  banks.*  It 
is  to  be  noted  that  the  distinction  was  made  between  deposits 
which  exceeded  and  those  which  did  not  exceed  the  statutory 
limit  upon  savings  bank  deposits;  and  that  the  whole  of  a  de- 
posit which  exceeded  the  statutory  limit  was  made  locally  tax- 
able and  not  merely  that  part  of  it  which  exceeded  such  limit. 
This  distinction  has  been  retained  in  the  income  tax  law ;  and  the 
whole  of  the  interest  on  a  deposit  in  a  savings  department  which 
exceeds  the  statutory  limit  is  subject  to  the  income  tax,5  and  the 
whole  of  such  deposit  is  exempt  from  the  excise  tax  on  the  trust 
company  in  the  savings  department  of  which  it  is  deposited.6 

Effect  of  Incapacity  to  Do  Business 

Section  16.  Whenever  a  bank,  as  defined  in  section  one  of 
chapter  one  hundred  and  sixty-seven,  is  restrained  from  doing  busi- 
ness by  an  injunction  issued  by  any  court,  or  is  in  the  hands  of  the 
commissioner  of  banks  under  said  chapter,  the  tax  payable  by  the 
bank  under  section  eleven,  as  computed  on  May  first  or  November 
first  next  ensuing,  after  the  bank  is  incapacitated  from  doing  busi- 
ness as  aforesaid,  shall  be  reduced  by  the  same  proportion  which  the 
number  of  business  days  during  the  six  months  next  preceding  the 
said  May  first  or  November  first  on  which  the  bank  was  thus  in- 
capacitated bears  to  the  total  number  of  business  days  in  the  said 
six  months;  and  thereafter  the  bank  shall  be  relieved  from  paying 
taxes  under  said  section  so  long  as  it  continues  to  be  incapacitated 
from  so  doing  business. 

•  St.  1909,  c.  342. 

'St.  1911,  c.  337. 

8  Supra,  page  439. 

•See  Old  Colony  Trust  Co.  v.  Commonwealth,  220  Mass.  409  (1915)  ;  J.  S. 
Lang  Engineering  Co.  v.  Commonwealth,  231  Mass.  367  (1918).  A  pass-book  in 
the  savings  department  of  a  trust  company  is  a  "security"  within  the  meaning 
of  the  statutes  imposing  a  tax  on  the  franchises  of  corporations.  J.  S.  Lang 
Engineering  Co.  v.  Commonwealth,  231  Mass.  367   (1918). 


520  Taxation  in  Massachusetts 

[G.  L.  c.  63,  §§  16-18 

Before  the  enactment  of  any  statute  specifically  covering  the 
subject,  it  was  held  that,  inasmuch  as  the  tax  on  savings  banks 
was  an  excise  on  the  privilege  of  doing  business,  when  a  savings 
bank  had  been  perpetually  enjoined  from  doing  business,1  or 
when  the  bank  commissioner  had  taken  and  retained  possession 
of  its  property  and  business,2  it  was  not  liable  to  the  tax,  but 
when  the  bank  was  still  in  the  exercise  of  its  corporate  powers, 
although  they  had  been  somewhat  curtailed  by  the  courts  on 
account  of  its  weak  financial  position,  it  was  still  subject  to  the 
excise  tax.3  The  effect  of  the  foregoing  statute  is,  in  the  class 
of  cases  in  which  the  bank  would  not  have  been  taxable  at  all 
under  the  law  as  it  previously  stood,  to  make  the  bank  liable  to 
a  portion  of  the  tax  proportionate  to  the  number  of  days  in 
which  it  had  been  doing  business  in  the  taxable  period. 

Massachusetts  Hospital  Life  Insurance  Co. 

Section  17.  The  Massachusetts  Hospital  Life  Insurance  Com- 
pany shall  semi-anually,  on  or  before  May  tenth  and  November  tenth, 
make  a  return,  signed  and  sworn  to  by  a  majority  of  its  board  of  direc- 
tors, of  the  full  amount  of  all  money  and  property,  in  detail,  in  its 
possession  or  charge  as  deposits,  trust  funds  or  for  purposes  of 
investment,  and  shall  pay  upon  all  the  same,  except  upon  deposits 
invested  in  loans  secured  by  mortgages  of  real  estate  taxable  in  this 
commonwealth  and  in  bonds  or  certificates  of  indebtednes  of  the 
United  States,  a  tax  at  the  rate  imposed  upon  savings  banks  on  account 
of  deposits.  If  said  corporation  neglects  to  make  such  return,  it  shall 
forfeit  fifty  dollars  for  each  day  such  neglect  continues;  and  if  it 
wilfully  makes  a  false  statement  in  any  such  return,  it  shall  be 
punished  by  a  fine  of  not  less  than  five  hundred  nor  more  than  five 
thousand  dollars. 

Savings  Bank  Insurance 

Section  18.  Savings  and  insurance  banks  doing  business  under 
chapter  one  hundred  and  seventy-eight  shall,  in  respect  to  all  funds 
held  by  the  insurance  department  as  a  part  of  its  insurance  reserve 
or  surplus,  and  the  General  Insurance  Guaranty  Fund  created  by  said 

Commonwealth  v.  Lancaster  Savings  Bank,  123  Mass.  493  (1878). 
"Greenfield  Savings  Bank  v.  Commonwealth,  211  Mass.  207  (1912). 
-Commonwealth  v.  Barnstable  Savings  Bank,  126  Mass.  526    (1879). 


Taxation  op  Corporations  521 

G.  L.  c.  63,  §§  18-20] 

chapter  shall  in  respect  to  all  funds  held  by  it,  pay  to  the  common- 
wealth the  same  taxes,  at  the  same  rate,  to  the  same  extent,  and  in  the 
same  manner  as  taxes  under  section  eleven  are  payable  on  deposits 
held  by  the  savings  department.  Savings  and  insurance  banks  shall 
not  be  taxable  on  funfls  held  as  part  of  the  expense  guaranty  fund, 
or  of  the  insurance  guaranty  fund,  nor  shall  such  banks  or  the  Gen- 
eral Insurance  Guaranty  Fund  be  liable  to  the  commonwealth  for 
any  taxes  or  fees  provided  to  be  assessed  upon  life  insurance  com- 
panies, or  for  any  taxes  or  fees  except  as  above  provided.  All  in- 
surance policies  and  annuity  contracts  issued  by  such  banks  shall 
otherwise  be  exempt  from  taxation. 

Co-operative  Banks 

Section  19.  The  capital  stock,  corporate  franchises  and  personal 
property,  but  not  the  real  estate,  of  co-operative  banks  shall  be  ex- 
empt from  taxation. 

This  exemption  is  doubtless  granted  to  avoid  double  taxation, 
as  the  capital  of  co-operative  banks  is  almost  entirely  invested  in 
mortgages  of  real  estate.  The  exemption  of  co-operative  banks 
is  also  found  in  chapter  fifty-nine.1 

INSURANCE   COMPANIES 
Life  Insurance  Companies 

Section  20.  Every  life  insurance  company,  as  defined  by  section 
one  hundred  and  eighteen  of  chapter  one  hundred  and  seventy-five, 
authorized  to  transact  business  in  the  commonwealth  shall  annually 
pay  an  excise  of  one-quarter  of  one  per  cent  upon  the  net  value  of 
all  policies  in  force  on  December  thirty-first  of  the  year  preceding  that 
in  which  the  tax  is  payable,  issued  or  assumed  by  such  company  on 
the  lives  of  residents  of  this  commonwealth  as  determined  by  the  com- 
missioner from  the  return  required  under  this  section  and  such  other 
evidence  as  he  may  obtain.  All  contingencies  of  any  other  character 
insured  against  by  such  company  under  authority  of  clause  sixth  of 
section  forty-seven  of  chapter  one  hundred  and  seventy-five  or  any 
other  provision  of  law,  contracts  for  which  are  required  to  be  in 
separate  and  distinct  policies,  shall  be  taxable  under  sections  twenty- 
two  and  twenty-three  of  this  chapter.  Every  such  company  shall 
annually,  on  or  before  May  first,  make  a  return  to  the  commissioner, 

1  G.  L.  c.  59,  §5,  cl.  16,  30,  supra,  pages  208,  214. 


522  Taxation  in  Massachusetts 

[G.  L.  c.  63,  §  20 
on  oath  of  its  president  or  secretary  and  its  actuary,  giving  in  such 
detail  as  the  commissioner  shall  require  the  total  number  of  policies 
in  force  on  December  thirty-first  preceding  on  the  lives  of  residents  of 
this  commonwealth,  the  aggregate  net  value  thereof  and  the  aggregate 
amount  insured.  Whenever  the  commissioner  deems  it  for  the  best 
interest  of  the  commonwealth  he  may  require  in  addition  to  the  above 
information  the  following  details  relating  to  each  policy  of  ordinary 
business  in  force  on  December  thirty-first  preceding  on  the  life  of 
a  resident  of  Massachusetts :  the  number,  date  and  class,  the  age  of  the 
assured,  the  amount  insured  and  the  net  value.  In  respect  to  ordinary 
business  the  aggregate  net  value  so  reported  shall  be  the  combined 
aggregate  of  the  mean  reserve  computed  for  each  policy,  or  each 
group  of  policies  requiring  a  separate  computation  to  determine  their 
net  value,  on  the  basis  of  valuation  used  or  approved  by  the  com- 
missioner of  insurance  under  section  nine  of  chapter  one  hundred 
and  seventy-five.  In  respect  to  industrial  business  the  aggregate  net 
value  so  reported  may  be  estimated  upon  the  basis  of  such  general 
averages  or  otherwise  as  shall  be  authorized  by  the  commissioner  with 
the  approval  of  the  commissioner  of  insurance. 

A  life  insurance  company  within  the  meaning  of  the  fore- 
going statute  is  a  company  engaged  in  the  business  of  issuing 
any  form  of  policy  conditioned  upon  the  continuance  or  cessa- 
tion of  human  life,1  and  the  business  of  life  insurance  thus  in- 
cludes the  writing  of  term  insurance,  endowment  insurance  and 
annuity  contracts,  as  well  as  ordinary  policies  of  life  insurance, 
properly  so-called.2  In  case  a  life  insurance  company  issues  in- 
surance against  accident,  liability  or  sickness,  it  is  taxable  with 
respect  to  such  policies  under  sections  twenty-two  and  twenty- 
three;  but  an  insurance  company  is  allowed  to  include  in  a  life 
insurance  policy  a  provision  that  premiums  shall  be  waived  in 
case  of  total  disability  and  that  a  greater  amount  shall  be  paid 
if  the  insured  meets  death  by  accident  than  if  he  dies  a  natural 
death,3  and  such  policies  are  taxable  under  this  section  without 
apportionment.4 

^ee  G.  L.  c.  175,  §118. 

1  Mutual  Benefit  Life  Insurance  Co.  v.  Commonwealth,  227  Mass.  63  ( 1917 )  - 
It  was  also  held  in  the  same  case  that  there  was  nothing  unconstitutional  in 
taxing  the  company  on  annuity  contracts,  although  the  annuitant  was  also  taxed 
on  the  annual  payments  as  income. 

*G.  L.  c.  175,  §24. 

*  See  Metropolitan  Life  Insurance  Company  v.  Insurance  Commissioner,  208 


Taxation  of  Corporations  523 

G.L.  c.  63,  §§20,  21] 

By  the  General  Statutes,  life  insurance  companies '  were 
obliged  to  pay  to  the  commonwealth  "one  cent  on  every  thousand 
dollars  insured  by  them  on  lives."  In  1880  a  tax  of  one-half  of 
one  per  cent  upon  the  aggregate  net  value  of  policies  in  force 
held  by  residents  of  the  commonwealth  was  imposed,  and  in  1881 
this  tax  was  reduced  to  one-quarter  of  one  per  cent  and  there  it 
has  remained.  The  statute  imposing  this  tax  has  been  held  to 
be  constitutional  as  an  excise  upon  the  privilege  of  holding  and 
managing  the  property  of  others,  and  it  was  further  held  that 
the  method  adopted  to  ascertain  the  value  of  this  privilege  was 
not  unreasonable.5  In  1915  the  statute  was  recast  so  as  to  au- 
thorize the  commissioner  to  require  the  return  of  additional  de- 
tails6 and  it  was  again  amended  in  1919  to  make  it  clear  that  acci- 
dent, liability  and  health  insurance,  issued  under  policies  distinct 
from  those  on  life,  were  not  taxable  under  this  section.7 

Retaliatory  Tax  on  Foreign  Life  Insurance  Companies 

Section  21.  Every  foreign  life  insurance  company  shall  annually 
pay  with  respect  to  business  taxable  under  the  preceding  section,  in 
addition  to  the  excise  hereby  imposed,  a  sum  equal  to  the  excess  over 
such  excise  of  the  amount  of  tax  which  would  be  imposed  in  the  same 
year  by  the  laws  of  the  state  or  country  under  which  such  company 
is  organized,  upon  a  life  insurance  company  incorporated  in  this 
commonwealth,  or  upon  its  agents,  if  doing  business  to  the  same 
extent  in  such  state  or  country. 

The  first  provision  on  this  subject  was  made  in  1856,  the  stat- 
ute then  enacted  requiring  "the  same  taxes,  fines,  penalties, 
deposits  and  obligations"  on  companies  incorporated  in  another 
state  and  doing  business  in  Massachusetts  as  were  imposed  on 
Massachusetts  companies  doing  business  in  such  other  state. 
In  1873  provision  was  made  for  the  taxation  of  every  foreign 
life  insurance  company  on  premiums  charged  or  received  on  con- 
tracts made  in  this  commonwealth  during  the  year  at  the  highest 
rate  imposed  by  the  state  of  incorporation  of  such  company 


Mass.  386  (1911)  ;  Metropolitan  Life  Insurance  Company  v.  Insurance  Commis- 
sioner, 220  Mass.  52  (1914). 

5  Connecticut  Mutual  Life  Insurance  Co.  v.  Commonwealth,  133  Mass.  161 
(1882). 

•St.  1915,  c.  217. 

TSt.  1919,  c.  349,  §7. 


524  Taxation  in  Massachusetts 

[G.  L.  c.  63,  §§  21-23 

upon  companies  chartered  by  this  commonwealth.  This  statute 
was  in  force  before  the  excise  on  net  values  now  imposed  by  sec- 
tion twenty  was  enacted,  and  it  was  not  intended  that  a  foreign 
company  should  pay  both  taxes,  and  the  tax  on  premium  re- 
ceipts was  in  no  case  assessed  unless  it  exceeded  the  tax  on  net 
values.1  The  object  of  the  statute  was  to  make  the  rate  of  taxa- 
tion thereunder  no  more  burdensome  upon  foreign  companies 
doing  business  here  than  the  like  rate  upon  Massachusetts  com- 
panies doing  business  in  the  foreign  state.2  In  1919  the  statute 
was  enacted  in  its  present  form,  making  it  clear  that  the  tax 
was  not  additional  to  the  tax  on  net  values  except  so  far  as  it 
exceeded  such  tax,  and  also  extending  its  provisions  so  as  to 
apply  to  all  taxes  assessed  on  Massachusetts  life  insurance  com- 
panies by  other  states,  whether  based  on  premium  receipts  or 
otherwise. 

Insurance  Companies  Doing  Business  Other  Than  Life 

Insurance 

Section  22.  Every  domestic  insurance  company  as  defined  in 
section  one  of  chapter  one  hundred  and  seventy-five,  except  life  insur- 
ance companies  with  respect  to  business  taxable  under  section  twenty, 
shall  annually  pay  an  excise  of  one  per  cent  upon  the  gross  premiums 
for  all  policies  written  or  renewed,  all  additional  premiums  charged, 
end  all  assessments  made  by  such  company  on  policy  holders  during 
the  preceding  calendar  year ;  but  such  premiums  for  policies  written 
or  renewed  for  insurance  of  property  or  interests  in  other  states  or 
countries  where  a  tax  is  actually  paid  by  such  company,  or  its  agents, 
shall  not  be  so  taxed. 

Section  23.  Every  foreign  insurance  company  as  defined  in  sec- 
tion one  of  chapter  one  hundred  and  seventy-five,  except  life  insurance 
companies  with  respect  to  business  taxable  under  sections  twenty  and 
twenty-one,  shall  annually  pay  an  excise  upon  the  gross  premiums 
for  all  policies  written  or  renewed,  all  additional  premiums  charged, 
and  all  assessments  made  during  the  preceding  calendar  year  for 
insurance  of  property  or  interests  in  this  commonwealth,  or  which 
are  subjects  of  insurance  by  contracts  issued  through  companies  or 
agents  therein,  at  the  rate  of  two  per  cent  but  not  less  in  amount  than 

1  Metropolitan  Life  Insurance  Co.  v.  Commonwealth,  198  Mass.  466  (1908). 
*  Metropolitan  Life  Insurance  Co.  v.  Commonwealth,  198  Mass.  466   (1908). 


Taxation  of  Corporations  525 

G.  L.  c.  63,  §  23] 

would  be  imposed  by  the  laws  of  the  state  or  country  under  which 
such  company  is  organized  upon  a  like  insurance  company  incor- 
porated in  this  commonwealth,  or  upon  its  agents,  if  doing  business 
to  the  same  extent  in  such  state  or  country.  In  case  any  company 
discontinues  business  in  this  commonwealth  and  reinsures  the  whole 
or  part  of  its  risks  without  making  payment  of  this  excise,  the  com- 
pany accepting  such  reinsurance  shall  pay  the  same,  and  if  several 
companies  shall  make  such  reinsurance,  the  tax  shall  be  apportioned 
among  such  companies  in  proportion  to  the  original  premiums  on  the 
business  in  this  commonwealth  so  reinsured  by  each  company. 

These  statutes  are  applicable  to  all  corporations,  associations, 
partnerships  or  individuals  engaged  as  principals  in  the  business 
of  making  contracts  of  insurance,  other  than  life  insurance.1 
A  contract  of  insurance  is  an  agreement  by  which  one  party  for 
a  consideration  promises  to  pay  money  or  its  equivalent,  or  to  do 
an  act  valuable  to  the  insured,  upon  the  destruction,  loss  or 
injury  of  something  in  which  the  other  party  has  an  interest.* 

It  has  been  held  that  the  excise  provided  for  by  this  statute 
may  be  constitutionally  imposed  upon  any  association  given  by 
legislative  sanction  the  privilege  of  acting  independently  of  the 
rules  that  govern  a  simple  partnership,3  and  as  no  foreign  com- 
pany or  association  is  allowed  to  carry  on  an  insurance  business 
in  this  commonwealth  unless  it  is  fully  and  legally  organized 
under  the  laws  of  its  own  state  or  country,4  the  constitutionality 
of  the  statute  with  respect  to  all  associations  to  which  it  is 
applicable  appears  to  be  unquestionable. 

These  statutes  are  applicable  to  mutual  as  well  as  to  stock 
companies.  Before  the  enactment  of  any  statutes  specifically 
requiring  the  taxation  of  insurance  companies  or  other  corpora- 
tions it  was  held  that  a  mutual  fire  insurance  company  was  not 
taxable  for  personal  property  held  by  it  for  the  purposes  of  its 
incorporation  and  invested  in  its  corporate  name.5  An  insurance 
company  might  have  offices  in  many  cities  and  was  not  a  resident 
of  any  of  them.  It  was  said  however  that  the  insured  stood  in 
the  same  position  as  stockholders  and  they  should  be  taxed  for 
their  respective  interests.    After  the  imposition  of  the  corporate 

*G.  L.  c.  175,  §i. ' 

'G.  L.  c.  175,  §2. 

•Oliver  v.  Liverpool,  etc.,  Insurance  Co.,  100  Mass.  531   (1868). 

*G.  L.  c.  175,  §151. 

"Worcester  Mutual  Fire  Insurance  Co.  v.  Worcester,  7  Cush.  600  (1851). 


526  Taxation  in  Massachusetts 

[G.  L.  c.  63,  §§  23,  24 

franchise  tax  in  1864  it  was  held  that  a  mutual  life  insurance 
company  was  not  taxable  thereunder  upon  its  unredeemed  guar- 
antee stock.0  Subsequently  it  was  provided  that  mutual  fire  and 
marine  insurance  companies  should  under  certain  circumstances 
be  taxable  for  the  corporate  franchise  tax,  and  companies  so 
taxed  were  exempted  from  the  special  provisions  relating  to  fire 
and  marine  insurance  companies;  but  there  was  no  special  pro- 
vision for  the  taxation  of  mutual  life  insurance  companies  and 
they  were  not  excepted  from  the  effect  of  the  statutes  relating 
to  the  taxation  of  life  insurance  companies.  In  1918  the  special 
provisions  for  the  taxation  of  mutual  fire  and  marine  insurance 
companies  were  repealed/  and  all  mutual  companies  are  now 
taxable  in  the  same  manner  as  stock  companies. 

Determination  of  Amount  of  Premiums  Tax 

Section  24.  In  determining  the  amount  of  the  tax  payable  under 
sections  twenty-one,  twenty-two  and  twenty-three,  there  shall  be  de- 
ducted all  premiums  on  policies  written  but  not  taken,  or  cancelled 
through  default  of  payment,  and  all  premiums  returned  or  credited 
to  policy  holders  during  the  year  for  which  the  tax  is  determined, 
provided  that  all  such  premiums  have  been  included  as  premium 
receipts  in  a  return  made  under  the  following  section  and  a  tax 
assessed  thereon,  and  all  premiums  paid  to  authorized  companies  for 
reinsurance,  provided  that  it  is  shown  to  the  satisfaction  of  the  com- 
missioner that  the  tax  on  such  premiums  has  been  or  will  be  paid 
in  full  by  such  reinsuring  company. 

Under  the  original  statute  imposing  a  tax  on  the  premium  re- 
ceipts of  insurance  companies,  no  deduction  whatever  was  al- 
lowed from  the  full  amount  of  all  gross  premiums  received.1 
When  subsequently  provision  was  made  for  certain  deductions — 
such  as  sums  paid  for  return  premiums  on  cancelled  policies  and 
sums  actually  paid  to  other  companies  for  reinsurance — it  was 
expressly  provided  that  dividends  should  not  be  considered  re- 
turn premiums.  Under  these  circumstances  it  was  held  that 
the  tax  was  on  gross  premiums,  subject  to  the  statutory  deduc- 
tions, and  not  upon  the  net  premiums  after  deducting  dividends 

*  Commonwealth  v.  Berkshire  Life  Insurance  Co., .98  Mass.  25   (1867). 

7St.  1918,  c.  184,  §8. 

»St.   1862,  c.  224,  §§1,  6,  9. 


Taxation  op  Corporations  527 

G.  L.  c.  63,  §§  24-27  inc.] 

paid  to  policy  holders.2  Subsequent  legislation  however  author- 
ized the  deduction  of  premiums  returned  or  credited  to  policy- 
holders.3 

Returns  and  Inspection  of  Books 

Section  25.  Every  insurance  company  liable  to  taxation  under 
section  twenty-one,  twenty-two  or  twenty-three  shall  annually  in 
January  make  a  return  to  the  commissioner  in  such  form  as  he  shall 
prescribe,  on  oath  of  its  secretary  or  other  officer  having  knowledge 
of  the  facts,  setting  forth:  if  a  domestic  company,  the  total  amount 
of  gross  premiums  for  all  policies  written  or  renewed,  of  all  additional 
premiums  charged  and  of  all  assessments  made,  during  the  preceding 
calendar  year,  and  the  amount  of  each  class  of  deductions  claimed 
under  any  provision  of  this  chapter ;  if  a  foreign  company,  the  total 
amount  of  gross  premiums  for  all  policies  written  or  renewed,  of  all 
additional  premiums  charged  and  of  all  assessments  made,  during  the 
preceding  calendar  year  for  insurance  of  property  or  interests  in 
this  commonwealth,  or  which  are  subjects  of  insurance  by  contracts 
issued  through  companies  or  agents  therein,  and  the  amount  of  each 
class  of  deductions  claimed  under  any  provision  of  this  chapter,  and 
in  addition  to  the  above  any  information  which  the  commissioner  may 
require  in  assessing  an  excise  under  any  provision  of  law. 

For  cause,  the  commissioner  may  extend  the  time  within  which 
any  such  statement  may  be  filed,  but  not  to  a  date  later  than  March 
first. 

Section  26.  The  books,  papers  and  accounts  of  every  insurance 
company  and  of  its  agents  shall  be  open  at  all  times  to  inspection  and 
examination  by  the  commissioner  and  the  commissioner  of  insurance, 
or  their  duly  authorized  representatives,  for  the  purpose  of  verifying 
the  accuracy  of  the  returns  made  under  sections  twenty  and  twenty- 
five. 

Section  27.  Every  insurance  company  neglecting  to  make  the  re- 
turn required  by  section  twenty  or  twenty-five  shall  forfeit  twenty- 
five  dollars  for  every  day  during  which  such  neglect  continues.  If 
any  company  neglects  to  make  such  return  for  ten  days  after  notice 
thereof  addressed  to  it  has  been  deposited  in  the  post  office,  postage 
prepaid,  it  shall  further  forfeit  five  hundred  dollars,  and  upon  an  in- 

1  American  Mutual  Liability  Insurance  Co.  v.  Commonwealth,  224  Mass. 
299  (1916). 

»St.  1916,  c.  227;  St.  1917,  c.  97;  St.  1918,  c.  184,  §1;  St.  1919,  c.  349,  §12. 


528  Taxation  in  Massachusetts 

[G.  L.  c.  63,  §§  27-29 

formation  by  the  attorney  general  at  the  relation  of  the  commissioner 
it  may  be  restrained  from  the  further  transaction  of  its  business  in 
this  commonwealth  until  it  has  made  such  return ;  but  such  penalties 
shall  not  be  incurred  if  it  is  proved  that  the  return  was  duly  made 
and  deposited  in  the  post  office,  postage  prepaid,  properly  directed  to 
the  commissioner,  and  that  there  was  no  neglect.  If  any  return 
required  by  said  section  twenty  or  twenty-five  contains  a  false  state- 
ment which  is  known,  or  by  the  exercise  of  reasonable  care  might  have 
been  known,  to  the  officers  making  it,  to  be  false,  such  company  shall 
be  liable  for  the  amount  of  tax  thereby  lost  to  the  commonwealth, 
and  each  offending  officer  shall  forfeit  not  less  than  five  hundred 
nor  more  than  five  thousand  dollars. 

Assessment  and  Collection  of  Tax 

Section  28.  The  commissioner,  from  such  returns,  and  from  such 
other  evidence  as  he  may  obtain,  shall  assess  upon  all  insurance  com- 
panies subject  to  this  chapter  the  taxes  imposed  by  sections  twenty 
to  twenty-three,  inclusive,  and  shall  forthwith  upon  making  such 
assessment  give  to  every  such  company  notice  of  the  amount  thereof. 
Such  taxes  shall  become  due  and  payable  to  the  state  treasurer  thirty 
days  after  the  date  of  such  notice  but  not  later  than  July  first.  All 
such  taxes,  whether  assessed  before  or  after  July  first,  shall  bear 
interest  at  the  rate  of  twelve  per  cent  per  annum  from  that  date  until 
they  are  paid.  Within  ten  days  after  the  date  of  such  notice  the  com- 
pany may  apply  to  the  commissioner  for  a  correction  of  said  excise, 
and  in  default  of  settlement  may  be  heard  thereon  by  the  board  of 
appeal.  The  commissioner  shall  annually,  on  or  before  July  first, 
deliver  to  the  state  treasurer  a  certificate  stating  the  name  of  every 
such  company  upon  which  such  excise  has  been  assessed  and  the 
amount  assessed  upon  each,  and  a  like  certificate  of  such  further 
assessments  as  may  be  made  after  that  date. 

Section  29.  Every  domestic  or  foreign  insurance  company  shall 
be  liable  for  the  full  amount  of  all  taxes  assessed  under  this  chapter 
upon  it  or  its  agents,  which,  with  interest  at  the  rate  of  twelve  per 
cent  per  annum,  may  be  recovered  in  contract  by  the  state  treasurer 
in  the  name  of  the  commonwealth.  It  shall  further  be  liable,  upon 
an  information,  to  an  injunction  restraining  it  and  its  agents  from 
the  further  prosecution  of  its  business  until  all  taxes  due  with  costs 
and  interest  are  fully  paid. 


Taxation  of  Corporations  529 

G.  L.  o.  63,  §  30] 

DOMESTIC    BUSINESS    CORPORATIONS      . 
Early  Methods  of  Taxing  Corporations 

It  was  not  until  the  latter  part  of  the  eighteenth  century  that 
the  taxation  of  private  corporations  became  a  subject  of  any 
importance  in  Massachusetts.  There  were  no  private  business 
corporations  in  the  colony  or  the  province  until  near  the  time 
of  the  revolution  and  perhaps  only  one  private  corporation  of 
any  kind  in  Massachusetts  before  the  year  1772,  namely,  that  of 
Harvard  College.1  Soon  after  the  revolution  however  the  cor- 
porate form  of  organization  came  into  frequent  use  by  the  pro- 
prietors of  banks,  turnpikes  and  bridges,  and  to  some  extent  of 
mills  and  factories,  and  before  the  nineteenth  century  was  far 
advanced  incorporated  mills  and  banks  and  manufacturing  and 
railroad  corporations  became  the  owners  of  large  amounts  of 
property.  In  1793  for  the  first  time  special  mention  was  made 
in  the  statutes  of  the  taxation  of  corporate  stock  or  property, 
when  it  was  provided  that  bank  shares  should  be  assessed  at 
their  just  value  to  the  individual  shareholders  in  the  places  where 
they  respectively  resided.2  In  1801  the  provision  was  extended 
to  shares  in  turnpike  and  bridge  corporations3  and  in  1805  to 
"any  other  incorporated  company  possessing  taxable  property."4 
In  1812  banking  corporations  were  subjected  to  an  excise  of  one 
per  cent  per  annum  on  their  capital  stock.5  There  were  no  spe- 
cial provisions  relating  to  the  taxation  of  corporations  themselves 
(other  than  the  tax  on  the  franchise  of  banking  corporations) 
but  corporations  were  commonly  assessed  under  the  general  pro- 
visions of  the  statutes  as  the  "owners"  of  both  real  and  personal 
property  where  it  was  situated,  the  only  corporations  owning  per- 
sonal property  being  usually  definitely  established  in  a  single 
town,  so  that  frequent  controversies  as  to  the  place  of  taxation 
were  not  likely  to  arise. 

Objection  to  this  method  of  taxation  being  taken  in  1813  for 
the  first  time,  it  was  pointed  out  by  the  court  that,  inasmuch 
as  the  stockholders  were  assessed  for  their  shares  in  the  towns 

1  Attorney-General  v.  Sullivan,  163  Mass.  446   (1895). 

2  St.  1793,  c.  9,  A. 
•St.  1800,  c.  77,  §2. 
«St.  1804,  c.  144,  §2. 

•St.  1812,  c.  32;  Portland  Bank  v.  Apthorp,  12  Mass.  252  (1815). 


530  Taxation  in  Massachusetts 

[G.  L.c.  63,  §30 

in  which  they  dwelt,  to  subject  the  property  of  the  corporation 
to  taxation  in  the  town  in  which  it  was  situated  would  result 
in  double  taxation,  a  thing  to  be  avoided  unless  clearly  required 
by  the  statute.  As  to  personal  property  there  was  no  such  re- 
quirement; in  fact,  strictly  speaking,  there  was  no  authority 
to  assess  it  at  all.  The  corporation  was  not  a  resident  of  the 
town  in  which  its  principal  place  of  business  was  situated ;  the  lo- 
cation of  personal  property  in  a  town  gave  the  town  no  right  un- 
der the  statutes  to  tax  it  except  in  certain  carefully  designated  in- 
stances, and  moreover,  if  the  personal  property  of  a  corporation 
might  be  taxed  in  one  town,  it  might  be  taxed  in  every  town  in 
which  the  corporation  did  business.  As  to  real  estate  however  the 
statutes  provided  that  it  should  be  taxed  in  the  town  in  which 
it  lay,  and  as  all  real  estate  whether  owned  by  corporations  or 
individuals  was  included  in  the  valuation  of  a  town  upon  the 
basis  of  which  the  state  tax  was  apportioned,  it  would  be  unjust 
to  exempt  any  of  it  from  contributing  to  the  payment  of  such 
taxes.  Accordingly  it  was  held  that  a  corporation  was  liable  to 
be  taxed  upon  its  real  estate  but  not  upon  its  personal  property.8 
No  material  change  in  the  statutes  relating  to  the  taxation 
of  corporations  was  made  until  1832  when  it  was  provided  that 
all  machinery  employed  in  any  branch  of  manufacture  and  be- 
longing to  any  corporation  or  person  should  be  assessed  where 
situated  and  that  in  assessing  the  shares  of  a  manufacturing  cor- 
poration there  should  be  deducted  the  value  of  the  machinery 
and  real  estate  of  the  corporation  specifically  taxed.7  These 
provisions  were  re-enacted  in  the  Revised  Statutes8  and  in  the 
General  Statutes9  and  continued  to  be  the  law  until  1864.  It  is 
to  be  noted  that  during  that  period  the  personal  property  of  cor- 
porations remained  exempt  from  taxation  by  judicial  construc- 
tion of  statutes  general  in  terms,  and  that  this  exemption  was 
not  so  much  based  upon  any  supposed  difficulty  in  fixing  the 
domicile  of  a  corporation  as  upon  the  injustice  of  taxing  the 

8  Salem  Iron  Factory  v.  Danvers,  10  Mass.  514  (1813).  See  also  to  same 
effect  Boston  &  Sandwich  Glass  Co.  v.  Boston,  4  Met.  181  (1842)  ;  Dunnell  Manu- 
facturing Co.  v.  Pawtucket  7  Gray  277  (1856).  In  Tremont  Bank  v.  Boston,  1 
Cush.  142  (1848),  it  was  held  that  a  banking  corporation  was  taxable  for  its 
real  estate  in  the  town  where  the  land  lay,  although  the  shareholders  were  taxed 
on  their  shares  without  deduction  for  real_  estate  and  the  bank  paid  a  tax  to  the 
commonwealth  on  its  capital  stock. 

7  St.  1832,  c.  158. 

8R.  S.,  c.  7,  §10,  cl.  2. 

»G.  S.  c.  11,  §12,  cl.  2. 


Taxation  of  Corporations  531 

G.  L.  c.  63,  §  30] 
same  property  twice — once  to  the  shareholders  and  once  to  the 

corporation.10  Accordingly  it  was  held  that  all  the  special  pro- 
visions of  statute  for  the  taxation  of  personal  property  other- 
wise than  at  the  domicile  of  its  owner  which  were  in  force  prior 
to  1918,11  though  general  in  terms,  had  no  application  to  the 
property  of  domestic  corporations.12 

The  Development  of  the  Franchise  Tax 

While  the  method  of  taxation  of  corporate  shares  and  prop- 
erty in  force  prior  to  the  civil  war  may  have  been  a  satisfactory 
one  in  the  more  or  less  primitive  conditions  which  existed  when 
it  was  established  and  when  the  shareholders  in  Massachusetts 
corporations  were  almost  exclusively  inhabitants  of  the  common- 
wealth, as  soon  as  shares  in  such  corporations  began  to  be  held 
by  non-residents,  the  personal  property  and  franchises  of  the  cor- 
porations to  the  extent  that  the  shares  were  held  outside  the 
state  escaped  all  taxation  in  Massachusetts,  and  probably,  as  a 
practical  matter,  were  rarely  reached  by  the  assessors  in  the 
states  where  the  holders  resided.  This  condition  was  obviously 
undesirable,  and  tended  to  encourage  the  real  or  colorable  trans- 
fer of  shares  in  domestic  corporations  to  non-residents. 

In  1863  a  statute  was  enacted  requiring  domestic  corporations 
to  pay  into  the  treasury  of  the  commonwealth  one-fifteenth  of 
all  dividends  declared  by  them  on  the  shares  of  non-resident 

"Thus  in  Trustees  of  the  Greene  Foundation  v.  Boston,  12  Cush.  54  (1853), 
it  was  held  that  a  corporation  which  had  no  capital  stock  was  taxable  for  its 
personal  property  generally  in  the  town  with  which  it  was  most  closely  identified 
and  in  Collector  of  Boston  v.  Mount  Auburn  Cemetery,  217  Mass.  286  (1914),  it 
was  held  that  a  cemetery  corporation  had  its  domicile  for  the  purposes  of  taxation 
in  the  town  in  which  the  cemetery  was  located. 

11 G.  L.  c.  59,  §18,  supra,  page  237. 

12  Thus  under  what  are  now  the  provisions  of  G.  L.  c.  59,  domestic  corpor- 
ations were  not  taxable  for  bank  stock  which  they  owned,  Worcester  County 
Institution  for  Savings  v.  Worcester,  10  Cush.  128  (1852);  Murray  v.  Berk- 
shire Life  Insurance  Co.,  104  Mass.  586  (1870);  or  for  their  income,  Boston 
Water  Power  Co.  v.  Boston,  9  Met.  199  (1845)  ;  or  for  the  polls  of  minors  in 
their  employ,  Boston  &  Sandwich  Glass  Co.  v.  Boston,  4  Met.  181  (1842)  ;  or  for 
stock-in-trade,  Amesbury  Woolen  &  Cotton  Manufacturing  Co.  v.  Amesbury,  17 
Mass.  461  (1821)  ;  Boston  &  Sandwich  Glass  Co.  v.  Boston,  4  Met.  181  (1842)  ; 
or  for  horses,  Middlesex  Railroad  Co.  v.  Charlestown,  8  Allen  330  (1864)  ;  or  for 
property  held  by  another  in  trust,  Worcester  v.  Board  of  Appeal,  184  Mass.  460 
(1904);  or  for  property  pledged,  Waltham  Bank  v.  Waltham,  10  Met.  334 
(1845).  A  corporation  is  taxable  for  property  held  by  it  in  trust  for  another 
because  such  property  adds  no  value  to  its  shares  and  is  consequently  not  reached 
by  the  franchise  tax.  Ricker  v.  American  Loan  &  Trust  Co.,  140  Mass.  346  (1885). 


532  Taxation  in  Massachusetts 

[G.L.c.  63,  §30 

owners.1  This  statute  was  held  unconstitutional.2  If  the  charge 
was  a  tax,  it  was  not  proportional;  if  an  excise  it  was  unequal, 
and  cast  greater  burdens  upon  citizens  of  other  states  than  of 
Massachusetts  in  violation  of  the  federal  constitution. 

In  1864,  before  the  statute  of  the  previous  year  had  been 
passed  upon  by  the  supreme  court  of  the  state,  a  new  and  valid 
method  of  reaching  indirectly  the  interests  of  non-resident  share- 
holders was  adopted  by  the  legislature  in  the  form  of  an  excise 
upon  the  franchise  of  domestic  corporations  based  upon  the  ex- 
cess of  the  market  value  of  all  the  capital  stock  of  a  corporation 
over  the  value  of  the  real  estate  and  machinery  belonging  to  it 
situated  in  Massachusetts  and  locally  taxed.3  The  shares  owned 
by  residents  of  the  commonwealth  were  no  longer  to  be  taxed 
locally,  and  the  personal  property  of  the  corporation  other  than 
machinery  continued  to  be  exempt.4 

This  statute  was  sustained  by  the  supreme  courts  of  Massa- 
chusetts5 and  of  the  United  States6  as  a  valid  excise  on  the  fran- 
chise of  the  corporation  and  not  as1  a  property  tax,  and  with  many 
elaborations  and  improvements  which  time  and  experience  have 
shown  to  be  just  and  advisable  it  stands  today  as  the  basis  of  the 
tax  on  domestic  corporations  now  in  force  in  Massachusetts. 

Under  the  original  statute,  as  amended  in  the  following  year, 
it  was  held  that  as  the  tax  was  not  a  property  tax  its  validity  did 
not  depend  on  the  nature  of  the  property  held  by  the  corpora- 
tion taxed  and  on  which  the  market  value  of  its  shares  depended 
and  that  the  corporation  was  not  entitled  to  deductions  which 
were  not  granted  specifically  by  the  statute.  Consequently 
taxes  were  sustained  which  gave  the  corporation  no  credit  for 
real  estate  outside  the  commonwealth,7  for  shares  of  another 
corporation  on  which  it  paid  taxes  in  Massachusetts,8  or  even 
for  bonds  of  the  United  States.9 

1  St.  1863,  c.  236. 

8  Oliver  v.  Washington  Mills,  11  Allen  268  (1865). 

•  St.  1864,  c.  208. 

♦Fall  River  v.  Bristol  County  Commissioners,  125  Mass.  567  (1878). 

6  Commonwealth  v.  Lowell  Gas  Light  Co.,  12  Allen  75  (1866)  ;  Commonwealth 
v.  Hamilton  Manufacturing  Co.,  12  Allen  298  (1866). 

8  Hamilton  Company  v.  Massachusetts,  6  Wall.  632  (1867). 

7  Commonwealth  v.  New  England  Slate  &  Tile  Co.,  13  Allen  391    (1866). 

8  Commonwealth  v.  New  England  Slate  &  Tile  Co.,  13  Allen  391   (1866). 
•Commonwealth    v.    Hamilton    Manufacturing    Co.,    12    Allen    298     (1866); 

Manufacturers'  Insurance  Co.  v.  Loud,  99  Mass.  146  (1868)  ;  Hamilton  Co.  v. 
Massachusetts,  6  Wall.  632   (1867). 


Taxation  of  Corporations  533 

G.  L.  c.  63,  §  30] 

The  tax  was  based  wholly  upon  the  market  value  of  the 
shares  and  not  upon  the  value  of  the  property  owned  by  the  cor- 
poration, and  was  not  unreasonable  and  invalid  if  it  was  founded 
upon  a  price  that  was  merely  speculative  and  greatly  in  excess 
of  the  value  of  the  tangible  property  of  the  corporation;10  for 
the  franchise  of  even  a  land  company  may  have  great  value. 
The  value  of  the  tangible  property  of  the  corporation  was  mate- 
rial only  when  the  market  value  of  the  shares  could  not  be  other- 
wise ascertained. 

The  Establishment  of  the  Present  System 

In  1902,  complaint  having  arisen  that  the  ordinary  busi- 
ness corporation  was  overtaxed,  a  commission  was  appointed 
to  investigate  the  subject,  and  recommended  that  in  valu- 
ing the  franchise  of  the  corporation  for  taxation  there  should 
be  deducted,  in  addition  to  real  estate  and  machinery,  the  value 
of  securities  which  if  owned  by  an  individual  would  not  be  tax- 
able and  the  value  of  property  other  than  real  estate  and  ma- 
chinery situated  in  another  state  or  country  and  there  taxed.  The 
legislature  of  1903  not  only  adopted  these  recommendations,  but 
provided  that  the  tax  should  in  no  event,  after  making  the  statu- 
tory deductions,  exceed  a  tax  levied  at  the  statutory  rate  upon 
a  valuation  twenty  per  cent  in  excess  of  the  value  of  the  tangible 
property  and  taxable  securities  of  the  corporation.1 

The  first  and  most  obvious  effect  of  the  maximum  limitation 
was  to  reduce  the  tax  on  the  more  prosperous  corporations  whose 
demonstrated  earning  capacity  had  increased  the  market  value 
of  their  aggregate  capital  stock  far  above  the  book  value  of  their 
assets;  but  a  secondary  effect,  the  recognition  of  which  was  not 
long  delayed,  was  to  bring  about  a  marked  inequality  in  the  taxes 
levied  on  corporations  of  similar  size  and  financial  strength,  and 
eventually  to  present  opportunities  for  evasion  which  were  so 
commonly  availed  of  as  to  deprive  the  state  of  a  large  portion 
of  the  revenue  which  it  should  properly  have  received.2    In  1917 

10  Commonwealth  v.  Lowell  Gas  Light  Co.,  12  Allen  75  (1866);  Common- 
wealth v.  Cary  Improvement  Co.,  98  Mass.  19  (1867). 

.  "St.  1903,  c.  437,  §74.  This  statute  also  established  as  a  minimum  limita- 
tion the  rule  that  the  local  taxes  and  the  corporate  franchise  tax  of  any  cor- 
poration should  not  together  be  less  than  one-tenth  of  one  per  cent  of  the  aggre- 
gate market  value  of  its  capital  stock. 

2See  Reports  of  Tax  Commissioner  for  1905,  1911  and  1916;  Report  of 
Special  Commission  on  Taxation  appointed  under  Chapter  134  of  the  Resolves 


534  Taxation  in  Massachusetts 

[G.  L.  c.  63,  §  30,  cl.  1, 2 

a  joint  special  committee  was  appointed  to  consider  the  revision 
of  the  whole  system  of  taxing  corporations.  This  committee 
reported  in  favor  of  discarding  the  tax  on  franchise  value  alto- 
gether and  substituting  a  tax  on  income.3  The  recommendation 
of  the  committee  was  not  acceptable  to  the  legislature  of  the 
following  year;  but  finally,  in  1919,  the  present  statute  was 
adopted,  retaining  the  tax  on  the  "corporate  excess,"  as  the  aggre- 
gate value  of  the  capital  stock  in  excess  of  the  statutory  deduc- 
tions had  come -to  be  known,  but  at  a  much  reduced  rate,  and 
with  the  maximum  limitation  discarded  and  the  more  obvious 
inequalities  of  the  earlier  law  evened  out;  and  at  the  same  time 
a  tax  on  income  at  a  moderate  rate  was  added  to  meet  the  loss 
of  revenue  arising  from  the  reduction  of  the  rate  of  the  tax  on 
the  corporate  excess. 

To  the  complications  incidental  to  this  system  of  taxation, 
even  when  applied  to  a  corporation  doing  business  wholly  in 
Massachusetts,  were  added  elaborate  provisions  for  allocating 
to  Massachusetts  an  equitable  portion  of  the  tax  in  the  case  of 
a  corporation  doing  business  in  Massachusetts  and  in  other 
states  as  well,  so  that  to  one  unfamiliar  with  the  growth  and 
development  of  the  statute,  and  the  objects  sought  to  be  attained, 
the  statute  is  extremely  difficult  of  comprehension.  This  lack 
of  simplicity  is  of  course  a  serious  fault ;  but  it  must  be  remem- 
bered that  the  complexities  of  the  statute  have  gradually  grown 
up  as  a  means  of  preventing  particular  inequalities  which  have 
been  foreseen  or  have  actually  occurred,  and  that  the  statute, 
whatever  its  faults  may  be,  represents  the  result  of  years  of 
study  of  many  trained  minds  engaged  in  a  sincere  effort  to  bring 
about  an  equitable  system  of  taxing  corporations  in  this  com- 
monwealth. 

To  What  Corporations  Applicable 

Section  30.  When  used  in  this  section  and  sections  thirty-one 
to  fifty-two,  inclusive,  the  following  terms  shall  have  the  following 
meanings : 

1.  "Domestic  business  corporation,"  every  corporation  organ- 
ized under  or  subject  to  chapter  one  hundred  and  fifty-six. 


of  1915,  pp.  24-31;  Report  of  Joint  Special  Committee  on  Corporation  Tax,  1918, 
Senate  Document  No.  28. 

8 1918,  Senate  Document  No.  28. 


Taxation  of  Corporations  535 

G.  L.  c.  63,  §  30,  cl.  1,  2] 

2.  "Foreign  corporation,"  every  corporation,  association  or  or- 
ganization established,  organized  or  chartered  under  laws  other  than 
those  of  the  commonwealth,  for  purposes  for  which  domestic  corpora- 
tions may  be  organized  under  chapter  one  hundred  and  fifty-six, 
which  has  a  usual  place  of  business  in  this  commonwealth,  or  is  en- 
gaged here,  permanently  or  temporarily,  in  the  construction,  erection, 
alteration  or  repair  of  a  building,  bridge,  railroad,  railway  or  struc- 
ture of  any  kind. 

In  accordance  with  the  foregoing  statute  domestic  business 
corporations  consist  of  all  corporations  having  a  capital  stock 
and  established  for  the  purpose  of  carrying  on  business  for  profit 
and  organized  under  the  general  laws  of  the  commonwealth, 
other  than  corporations  of  the  classes  enumerated  in  the  follow- 
ing paragraph,  and  all  such  corporations  created  by  special  law 
except  such  as  were  organized  before  March  11,  1831,  and  whose 
charters,  containing  provisions  inconsistent  with  these  statutes, 
are  not  subject  to  amendment,  alteration  or  repeal  and  also 
excepting  such  as  were  organized  after  June  17,  1903  and  the 
charters  of  which  contain  provisions  inconsistent  with  these 
statutes.1 

The  term  does  not  include  corporations  organized  under  gen- 
eral or  special  laws  of  this  commonwealth  for  the  purpose  of 
carrying  on  the  business  of  a  bank,  savings  bank,  co-operative 
bank,  trust  company,  credit  union,  surety  or  indemnity  company, 
or  safe  deposit  company,  or  for  the  purpose  of  carrying  on  within 
the  commonwealth2  the  business  of  an  insurance  company,  rail- 
road, electric  railroad,  trolley  motor  or  street  railway  company, 
telegraph  or  telephone  company,  gas  or  electric  light,  heat  or 
power  company,  canal,  aqueduct  or  water  company,  cemetery 
or  crematory  company  or  any  other  corporations  which  now  have 
or  may  hereafter  have  the  right  to  take  land  within  the  common- 

1  March  11,  1831  is  the  date  of  the  going  into  effect  of  the  statute  (St.  1830, 
C  81 )  enacted  to  counteract  the  effect  of  the  decision  of  the  Dartmouth  College 
case  by  providing  that  all  charters  thereafter  granted  should  be  subject  to  amend- 
ment, alteration  or  repeal.  June  17,  1903,  is  the  date  of  the  enactment  of  the 
Business  Corporation  Law  (St.  1903,  c.  437). 

2  There  were  formerly  special  provisions  regarding  the  taxation  of  corpora- 
tions organized  under  the  laws  of  this  commonwealth  for  the  purpose  of  build- 
ing railroads  in  foreign  countries.  See  Pratt  v.  Street  Commissioners  of 
Boston,  139  Mass.  555  (1885) .  Since  1903  such  corporations  have  been  subject  only 
to  the  domestic  franchise  tax.  Mexican  Central  By.  Co.  v.  Commonwealth,  192 
Mass.  129  (1906). 


536  Taxation  in  Massachusetts 

[G.  L.  c.  63,  §  30,  cl.  3 

wealth  or  to  exercise  franchises  in  public  ways  granted  by  the 
commonwealth  or  by  any  county,  city  or  town. 

Corporate  Excess — Valuation  and  Deductions 

3.  "Corporate  excess,"  in  the  case  of  a  domestic  business  cor- 
poration, the  fair  cash  value  of  all  the  shares  constituting  the  capital 
stock  of  a  corporation  on  the  first  day  of  April  when  the  return  called 
for  by  section  thirty-five  is  due,  less  the  value  of  the  following : 

(a)  The  works,  structures,  real  estate,  machinery,  poles,  under- 
ground conduits,  wires  and  pipes  owned  by  it  within  the  common- 
wealth subject  to  local  taxation,  except  such  part  of  said  real  estate 
as  represents  the  interest  of  a  mortgagee. 

(&)  Securities,  the  income  of  which,  if  any,  if  received  by  a 
natural  person  resident  in  this  commonwealth,  would  not  be  liable  to 
taxation,  except  shares  in  national  banks  and  voluntary  associations, 
trusts  and  partnerships. 

(c)  Its  real  estate,  machinery,  merchandise  and  other  tangible 
property  situated  in  another  state  or  country,  except  such  part  there- 
of as  represents  the  interest  of  a  mortgagee. 

(d)  If  any  portion  of  its  cash  and  accounts  and  bills  receivable, 
excluding  notes,  is  attributable  to  an  office  outside  the  commonwealth, 
the  same  proportion  of  its  cash  and  accounts  and  bills  receivable, 
excluding  notes,  which  its  real  estate,  machinery  and  merchandise 
situated  in  another  state  or  country  bear  to  its  total  real  estate, 
machinery  and  merchandise,  to  the  extent  that  such  proportion  fairly 
represents,  in  the  judgment  of  the  commissioner,  the  amount  which  is 
properly  allocable  to  such  other  state  or  country. 

Valuation  of  Shares 

The  first  step  in  determining  the  "corporate  excess"  of  any 
corporation  is  for  the  commissioner  to  ascertain  the  fair  cash 
value  of  all  the  shares  constituting  the  capital  stock  of  the  cor- 
poration on  the  first  day  of  April  of  the  year  for  which  the  tax 
is  assessed.  Before  shares  can  be  considered  as  constituting  part 
of  the  capital  stock  of  a  corporation  they  must  have  been  issued ; 
it  is  not  sufficient  that  they  have  been  subscribed  for.1  More- 
over they  must  have  been  issued  by  authority  of  law ;  and  when 
a  statute  requires  the  approval  of  a  commission  before  a  cor- 

1  Boston  &  Albany  R.  R.  Co.  v.  Commonwealth,  157  Mass.  69   (1892). 


Taxation  of  Corporations  537 

G.  L.  c.  63,  §  30,  cl.  3] 

poration  of  a  certain  class  can  issue  its  shares,  a  corporation  of 
that  class  which  has  issued  its  shares  without  obtaining  such  ap- 
proval is  not  liable  to  the  franchise  tax,  for  the  shares  so  issued 
were  void.2  Mere  failure  on  the  part  of  the  corporation  to  comply 
with  some  directory  provision  of  statute  in  regard  to  the  issu- 
ance of  shares  would  not  however  exempt  the  corporation  from 
taxation  on  such  shares.3 

The  valuation  is  based  upon  the  fair  market  value  of  the 
shares,  and  not  upon  the  value  of  the  property  of  the  corpora- 
tion which  is  represented  by  such  shares.4  If  the  shares  are  com- 
monly bought  and  sold,  and  have  a  readily  ascertainable  mar- 
ket value,  such  value  is  for  all  practical  purposes  conclusive, 
and  it  is  idle  to  even  consider  the  "book  value"  of  the  shares,  or 
to  attempt  to  value  them  merely  as  fractional  interests  in  the 
net  assets  of  the  corporation.5 

If  however  the  shares  are  not  commonly  bought  and  sold, 
their  fair  market  value  must  be  ascertained  by  whatever  other 
methods  are  available,  and  any  evidence  which  throws  light  upon 
value  may  be  considered.6  Prior  to  the  enactment  of  the  present 
law  in  1919,  when  there  were  no  sales  to  guide  the  commissioner' 
he  commonly  relied  upon  the  net  book  value  of  the  assets  of  a 
corporation  as  shown  by  its  return  as  a  test  of  the  value  of  its 
aggregate  capital  stock.  The  present  statute,  which  necessarily 
resulted  in  furnishing  the  commissioner  with  a  statement  of  the 
income  of  each  corporation  while  at  the  same  time  it  repealed 
the  statute  which  limited  the  valuation  of  the  aggregate  capital 
stock  of  a  corporation  to  a  sum  not  more  than  twenty  per  cent 
in  excess  of  the  value  of  the  tangible  property  and  taxable  secur- 
ities owned  by  it,  has  given  the  commissioner  the  opportunity 
of  using  the  net  income  of  a  prosperous  corporation  not  only 
as  itself  the  basis  of  a  tax  but  as  indicating  a  value  in  the  stock 
in  excess  of  the  amount  reflected  by  the  value  of  the  assets, 
and  as  thus  furnishing  a  justification  for  an  increase  in  the  valu- 
ation of  the  franchise  over  the  amount  fixed  under  the  statute 

'Attorney-General  v.  Massachusetts  Pipe  Line  Gas  Co.,  179  Mass.  15  (1901). 

•Attorney-General  v.  Massachusetts  Pipe  Line  Gas  Co.,  179  Mass.  15  (1901). 

*  Commonwealth  v.  Lowell  Gas  Light  Co.,  12  Allen  75  (1866);  Common- 
wealth v.  Cary  Improvement  Co.,  98  Mass.  19   (1867). 

"National  Bank  of  Commerce  v.  New  Bedford,  155  Mass.  313  (1891);  Na- 
tional Bank  of  Commerce  v.  New  Bedford,  175  Mass.  257   (1900). 

6  Thus  the  effect  of  a  dividend  earned  and  declared  but  not  yet  paid  should 
be  considered,  Boston  &  Lowell  R.  R.  Co.  v.  Commonwealth,  100  Mass  399  (1868). 


538  Taxation  in  Massachusetts 

[G.  L.  c.  63,  §  30,  cl.  3 

previously  in  force.7  While  there  is  no  doubt  that  the  annual 
net  income  is  a  material  factor  in  determining  the  value  of 
stock  in  a  corporation,  the  business  conditions  which  affect  the 
value  of  stock  in  different  corporations  are  so  diverse  that  a 
capitalization  of  net  income  by  a  formula  which  does  not  take 
into  consideration  these  different  conditions  is  an  uncertain 
guide;  and  yet  it  is  clearly  impossible  for  the  commissioner  or 
his  assistants  to  make  an  individual  study  of  the  peculiar  facts 
applicable  to  each  of  the  many  thousand  corporations  chartered 
in  this  commonwealth.  Under  these  circumstances,  if  the  officers 
of  a  corporation  feel  that  the  commissioner  has  overvalued  its 
shares,  they  should  not  hesitate  to  bring  the  matter  to  his  at- 
tention. 

Deductions — in  General 

The  deductions  to  which  a  domestic  business  corporation 
was  entitled  under  the  original  corporate  franchise  tax  consisted 
only  of  real  estate  and  machinery  situated  within  the  common- 
wealth and  locally  taxed,  and  it  was  held  that  corporations  were 
not  entitled  to  deductions  not  specifically  mentioned  in  the  stat- 
ute. A  corporation  was  given  no  credit  for  real  estate  situated 
outside  the  commonwealth,8  for  shares  of  another  corporation 
on  which  it  paid  taxes  in  this  commonwealth,9  or  even  for  bonds 
of  the  United  States  which  were  not  taxable  at  all.10  Inasmuch 
as  the  tax  is  an  excise  and  not  a  property  tax,  corporations  have 
no  constitutional  right  to  any  deductions  whatever,  but  the 

7  At  the  present  time  the  method  used  by  the  commissioner  to  determine  the 
value  of  the  aggregate  shares  of  a  business  corporation,  domestic  or  foreign,  is 
to  capitalize  the  average  net  income  for  the  preceding  five  years  at  12%%  and 
to  give  the  figure  thus  obtained  one-half  the  weight  given  to  the  net  value  of  the 
assets  of  the  corporation.    Reduced  to  a  formula  the  method  is  as  follows: 

a  =  net  value  of  the  assets  (excess  of  assets  over  liabilities). 

b  =  average   net  income   of   the   corporation  for  five   preceding  years. 

c  =  value  of  aggregate  shares. 

2a  +  8b 

c  = 

3 
In  1920  it  was  attempted  to  give  a  decreasing  weight  to  the  income  of  the 
preceding  years  proportioned  to  their  distance  from  the  time  of  assessment,  but 
this  method  proved  unsatisfactory  and  was  abandoned. 

8  Commonwealth  v.  New  England  Slate  &  Tile  Co.,  13  Aller   391   (1866). 
•Commonwealth  v.  New  England  Slate  &  Tile  Co.,  13  Allen  391    (1866). 

10  Commonwealth  v.  Hamilton  Manufacturing  Co.,  12  Allen  298  (1866)  ;  s.  c. 
sub  nom  Hamilton  Co.  v.  Massachusetts,  6  Wall.  632  (1867);  Manufacturers' 
Insurance  Co.  v.  Loud,  99  Mass.  146  (1868). 


Taxation  of  Corporations  539 

G.  L.  c.  63,  §  30,  cl.  3] 

legislature  has  consistently  endeavored  to  deal  fairly  with  them 
and  to  avoid  everything  that  might  indirectly  result  in  double 
taxation.  In  1865  it  was  provided  that  the  value  of  their  real 
estate  and  machinery  subject  to  local  taxation  "wherever  sit- 
uated" should  be  deducted.11  In  1902  underground  conduits, 
wires  and  pipes  were  made  locally  taxable  and  their  value  was 
deducted  from  the  corporate  franchise  tax.12  In  the  Business 
Corporation  Law  of  1903  the  subject  was  gone  into  comprehen- 
sively and  the  value  of  securities  which  if  owned  by  a  natural 
person  resident  within  this  commonwealth  would  not  be  liable  to 
taxation  and  the  value  of  property  other  than  real  estate  and 
machinery  situated  in  another  state  or  country  and  subject  to 
taxation  therein  were  added  to  the  items  to  be  deducted.13 

In  1909  poles  were  included  in  the  deductible  items14  and 
in  1917  it  was  provided  that  cash  on  hand  or  in  bank  and  ac- 
counts receivable  should  be  regarded  as  property  situated  in 
another  state  or  country  if  the  corporation  had  a  usual  place 
of  business  in  such  other  state  or  country  and  such  property  was 
taxable  therein.15  In  1919,  by  a  statute  going  into  effect  before 
the  new  corporation  tax  law,  which  was  enacted  in  the  same 
year,  it  was  provided  that  so  much  of  the  real  estate  of  a  cor- 
poration as  was  represented  by  a  mortgage  debt  should  not  be 
deducted.16  Thus  the  statutes  in  regard  to  deductions  in  force 
when  the  1919  law  was  enacted  were  very  much  the  same  as  the 
provisions  contained  in  that  act. 

Deductions — (a)  Real  Estate,  Machinery  and  Structures 
The  deduction  of  real  estate  and  machinery  within  the  com- 
monwealth from  the  tax  on  stock  of  domestic  corporations  was 
established  in  1832  and  was  continued  in  force  when  the  cor- 
porate franchise  law  was  established.  The  only  changes  in  this 
portion  of  the  statute  have  been  the  addition  of  conduits,  wires 
and  pipes  in  1902,  and  poles  in  1909,  and  the  provision  enacted  in 
1919  that  the  part  of  the  real  estate  representing  the  interest 
of  a  mortgagee  should  not  be  considered.  This  last  provision 
was  enacted  to  prevent  the  amount  of  a  mortgage  from  being 

"St.  1865,  c.  283,  §5. 
w  St.  1902,  c.  342. 
lSSt.  1903,  c.  437,  §72. 
l4St.  1909,  c.  439,  §2. 
18  St.  1917,  c.  208. 
»St.  1919,  c.  332. 


540  '  Taxation  in  Massachusetts 

[G.  L.  c.  63,  §  30,  cl.  3 

deducted  twice;  once  as  a  debt  decreasing  the  net  value  of  the 
aggregate  stock  of  the  company  and  again  as  part  of  the  value 
of  the  real  estate  included  in  the  statutory  deduction.  When 
the  mortgage  covers  both  real  estate  in  Massachusetts  and  other 
property  the  interest  of  the  mortgagee  in  the  real  estate  in  Mas- 
sachusetts is  determined  by  apportionment  in  accordance  with 
the  respective  values  of  the  real  estate  in  Massachusetts  and  the 
other  property;  but  the  interest  of  the  mortgagee  in  real  es- 
tate in  Massachusetts  is  never  to  be  deemed  to  be  in  excess  of 
the  fair  cash  value  of  such  real  estate. 

The  use  of  the  words  "real  estate"  in  that  part  of  the  statute 
which  establishes  an  exception  from  the  deduction  of  "such 
part  of  said  real  estate  as  represents  the  interest  of  a  mortgagee" 
has  caused  some  confusion.  It  is  probable  that  the  words  "real 
estate"  were  used  by  inadvertence  and  "said  property"  was 
what  was  meant;  but  taking  the  statute  as  it  stands  its  appli- 
cation is  open  to  some  question,  for  it  is  not  clear  in  what  sense 
the  words  "real  estate",  are  used.  It  will  be  remembered  that 
buildings  are  taxable  as  real  estate,  regardless  of  any  arrange- 
ment between  the  owner  of  the  land  and  the  owner  of  the  build- 
ing,17 but  that  machinery,  poles,  conduits,  wires  and  pipes  are 
taxable  as  personal  property,  though  affixed  to  the  land.18  It  is 
not  clear  whether  the  exception  from  the  deduction  is  applicable 
only  to  property  taxable  as  real  estate  or  includes  all  property 
that  is  real  estate  within  the  meaning  of  the  law  generally. 

It  is  to  be  noted  that  the  deduction  is  limited  to  property 
owned  by  the  corporation  and  subject  to  local  taxation;  it  doe3 
not  extend  to  property  occupied  by  the  corporation  on  lease 
or  otherwise  on  which  it  pays  the  taxes,  nor  on  the  other  hand 
is  the  deduction  lost  with  respect  to  property  owned  by  the  cor- 
poration merely  because  the  tax  is  paid  by  another.  Mortgages 
of  real  estate  subject  to  local  taxation  which  are  held  by  a 
corporation  have  always  been  considered  real  estate  within  the 
meaning  of  the  statute  and  the  value  of  such  mortgages  is  in- 
cluded in  the  deduction.19 

The  provisions  with  respect  to  the  valuation  of  real  estate 
for  the  purpose  of  deduction  found  in  the  last  paragraph  of  sec- 

17  See  G.  L.  c.  59,  §11,  supra,  page  226. 

18  See  G.  L.  c.  59,  §§11,  18,  cl.  5,  supra,  pages  226,  246,. 
"Firemen's  Insurance  Co.  v.  Commonwealth,  137  Mass.  80  (1884). 


Taxation  of  Corporations  541 

G.  L.  c.  63,  §  30,  cl.  3] 

tion  fifty-five  and  in  sections  fifty-seven  and  fifty-nine,  aimed 
at  making  the  excise  tax  and  the  local  tax  on  real  estate  comple- 
mentary, although  in  terms  applicable  only  to  the  tax  on  the  cor- 
porate franchise  of  public  service  corporations  and  trust  com- 
panies, are  undoubtedly  made  applicable  to  the  tax  on  the  cor- 
porate excess  of  business  corporations  by  the  second  sentence  of 
section  forty-four. 

Deductions — (b)  Non-Taxable  Securities 

The  deduction  of  non-taxable  securities  from  the  aggregate 
value  of  the  capital  stock  of  corporations  originated  with  the 
Business  Corporation  Law  of  1903  and  has  continued  without 
change  except  so  far  as  necessary  to  adapt  the  statute  to  the 
Income  Tax  Act.20  The  word  "securities"  includes  bonds,  stock 
certificates,  promissory  notes,  bills  of  exchange  and  other  like 
evidences  of  indebtedness  or  of  property;21  but  it  does  not  in- 
clude mere  choses  in  action  or  accounts  receivable  not  evidenced 
by  written  instruments  which  are  more  than  mere  statements 
of  account  but  in  a  sense  are  recognized  as  representing  the  obli- 
gation itself.22  As  applied  to  deposits  in  banks,  it  does  not  in- 
clude money  on  deposit  in  a  national  bank  or  trust  company  un- 
less evidenced  by  a  negotiable  certificate  of  deposit,23  but  it 
does  include  deposits  in  savings  banks  or  in  the  savings  depart- 
ments of  trust  companies,  since  the  bank  books  of  such  .institu- 

20  Under  the  original  statute  the  deduction  was  granted  with  respect  to 
securities  which  if  owned  by  a  natural  person  resident  in  the  commonwealth 
would  not  be  liable  to  taxation.  Under  this  statute  it  was  held  that  shares  in 
national  banks  were  not  deductible,  although  such  shares,  unlike  shares  in  other 
corporations  which  were,  taxed  when  owned  by  individuals,  were  taxed  when 
owned  by  domestic  corporations,  and  were  included  in  the  taxable  franchise  value 
of  domestic  corporations  as  well.  A.  J.  Tower  Co.  v.  Commonwealth,  223  Mass. 
371  (1916).  When  the  income  tax  law  was  enacted,  all  securities  previously  tax- 
able (except  national  bank  stocks)  were  exempted  from  taxation  on  their  cap- 
ital value  when  in  the  hands  of  individuals;  but  it  was  expressly  provided  that 
they  should  still  be  considered  as  taxable  for  the  purpose  of  deductions  under  the 
corporate  franchise  tax.  St.  1916,  c.  269,  §11.  Under  the  corporation  tax  law 
of  1919  this  circuitous  method  of  dealing  with  the  subject  was  rendered  unneces- 
sary; but  as  exemption  from  taxation  on  income  was  made  the  basis  of  deduc- 
tion, it  was  necessary  to  specifically  except  shares  in  national  banks  from  the 
deduction,  and  also  shares  in  voluntary  associations,  partnerships  and  trusts, 
since  such  organizations  are  in  some  instances  themselves  taxed  under  the  in- 
come tax  law  and  the  shares  are  consequently  not  taxed  on  income. 

21  Boston  Railroad  Holding  Co.  v.  Commonwealth,  215  Mass.  493-  (1913); 
Bellows  Falls  Power  Co.  v.  Commonwealth,  221  Mass  51  (1915)  ;  J.  S.  Lang 
Engineering  Co.  v.  Commonwealth,  231  Mass.  367   (1918). 

"Boston  Railroad  Holding  Co.  v.  Commonwealth,  215  Mass.  493   (1913). 
"Boston  Railroad  Holding  Co.  v.  Commonwealth,  215  Mass.  493  (1913). 


542  Taxation  in  Massachusetts 

[G.  L.  c.  63,  §  30,  cl.  3 

tions  are  not  mere  statements  of  account  but  partake  of  the 
nature  of  money  securities.24 

The  only  real  difficulty  in  determining  what  securities  are 
non-taxable  is  in  the  case  of  notes  or  bonds  secured  by  mortgage 
of  real  estate.  Such  securities  are  subject  to  the  income  tax 
when  owned  by  individual  residents  of  the  state  unless  they  are 
secured  solely  by  mortgage  of  real  estate,  situated  in  Massachu- 
setts and  taxable  as  real  estate,  and  are  then  exempt  only  to  an 
amount  not  in  excess  of  the  assessed  value  of  the  real  estate 
after  deducting  all  prior  mortgages,25  and,  before  allowing  a  de- 
duction on  account  of  mortgage  bonds  and  notes,  the  commis- 
sioner requires  the  corporation  to  satisfy  him  that  the  mort- 
gage covers  nothing  but  real  estate,  and  to  furnish  a  statement 
showing  the  location  of  the  real  estate,  the  amount  of  mortgage 
outstanding  on  April  first,  the  amount  of  any  prior  liens,  and  the 
assessed  value  of  the  real  estate.  It  is  to  be  noted  that  mort- 
gages of  real  estate  situated  in  Massachusetts  and  locally  taxed 
were  treated  as  deductible  under  the  preceding  paragraph  of 
this  section  before  non-taxable  securities  were  added  to  the  items 
of  deduction,  but  there  appears  to  be  no  difference  in  the  nature 
and  extent  of  the  deduction,  under  whatever  paragraph  allowed. 

Deductions — (c)   Tangible  Property  Situated  in  Another 

State  or  Country 
In  the  corporate  franchise  act  of  1865  it  was  provided  that 
the  real  estate  and  machinery  of  domestic  corporations  "wher- 
ever situated"  should  be  an  item  of  deduction,  if  subject  to  local 
taxation.  In  1903  the  deduction  was  extended  to  all  "property 
situated  in  another  state  or  country  and  subject  to  taxation 
therein."  Under  this  statute  it  was  held  that  the  deduction  ap- 
plied only  to  tangible  property  and  did  not  extend  to  stock  in  a 
foreign  corporation,26  or  to  bank  deposits  in  another  state  and 
accounts  receivable  arising  out  of  business  carried  on  in  another 
state,27  or  to  the  franchise  to  carry  on  business  as  a  corporation 
in  another  state.28 

24  J.  S.  Lang  Engineering  Co.  v.  Commonwealth,  231  Mass.  367   (1918). 
"See  G.  L.  c.  62,  §1,   (a)   cl.  third,  supra,  page  440. 

26  Bellows  Falls  Power  Co.  v.  Commonwealth,  222  Mass.  51    (1915). 

27  Simplex  Electric  Heating  Co.  v.  Commonwealth,  227  Mass.  225  (1917). 

28  American  Glue  Co.  v.  Commonwealth,  195  Mass.  529  (1907).  See  also 
Farr  Alpaca  Co.  v.  Commonwealth,  212  Mass.  156  (1912)  holding  that  wool  in  a 
bonded  warehouse  within  the  commonwealth  was  not  deductible. 


Taxation  of  Corporations  543 

G.  L.  c.  63,  §  30,  cl.  3] 

As  other  states  began  to  adopt  the  practice  of  taxing  foreign 
corporations  by  other  methods  than  a  direct  tax  on  the  property 
of  such  corporations,  difficult  questions  began  to  arise  with  re- 
spect to  the  deduction  of  property  in  another  state  which  was  not 
subject  to  a  direct  property  tax  but  which  was  nevertheless 
reached  for  purposes  of  taxation  in  some  other  way;  but  in  the 
corporation  tax  act  of  1919  these  difficulties  were  done  away  with 
by  no  longer  basing  the  deduction  of  property  located  in  another 
state  upon  the  legislative  desire  to  avoid  double  taxation,  but 
upon  the  injustice  of  reaching  by  means  of  an  excise  real  estate 
and  tangible  personal  property  located  in  another  state  and 
which  the  state  could  not  constitutionally  subject  to  a  direct 
tax;  and  the  deduction  with  respect  to  property  in  another  state 
was  granted  without  regard  to  the  question  whether  such  prop- 
erty was  locally  taxed. 

The  same  limitation  in  respect  to  mortgages  was  imposed 
upon  the  deduction  of  the  value  of  property  located  in  another 
state  as  was  imposed  in  the  case  of  the  deduction  of  the  value 
of  real  estate  situated  in  Massachusetts,  and  the  same  method 
of  apportioning  the  deduction  is  applied  when  the  mortgage 
covers  property  located  in  another  state  and  other  property  as 
well.  The  1919  statute  also  specifically  limited  the  deduction 
under  this  paragraph  to  tangible  property,  but  made  special 
provision  in  the  following  paragraph  for  a  limited  deduction  on 
account  of  intangible  property  in  another  state. 

Deductions — (d)  Cash  and  Bills  Receivable  Attributable 
to  an  Office  Outside  the  Commonwealth 

In  1917  it  was  held  that  the  deduction  with  respect  to  prop- 
erty situated  in  another  state  did  not  apply  to  bank  deposits  in 
another  state  or  to  accounts  receivable  in  another  state;29  but  in 
the  same  year  a  statute  was  enacted  providing  that  cash  on  hand 
or  in  bank  or  accounts  receivable  owned  by  a  domestic  business 
corporation  should  be  regarded  as  property  situated  in  another 
state  or  country  if  the  corporation  had  a  usual  place  of  business 
in  such  other  state  or  country  and  such  property  was  taxable 
therein.30  In  1919  the  deduction  with  respect  to  such  property 
was  placed  in  its  present  form. 

"•Simplex  Electric  Heating  Co.  v.  Commonwealth,  227  Mass.  225  (1917). 
80  St.  1917,  c.  268. 


544  Taxation  in  Massachusetts 

[G.  L.  c.  63,  §  30,  cl.  4 

It  is  to  be  noted  that  the  deduction  does  not  extend  to  secur- 
ities in  any  form,  even  to  promissory  notes,  although  it  would 
doubtless  include  checks  and  other  like  instruments  calling  for 
immediate  payment.  Accounts  and  bills  receivable  are  not 
considered  to  be  attributable  to  an  office  outside  the  state  unless 
they  resulted  from  sales  made  by  agents  chiefly  situated  at,  con- 
nected with  or  sent  out  from  such  office,  or  from  rents  or  royal- 
ties from  property  situated  in  another  state  or  country  or  from 
the  use  of  patents  outside  the  commonwealth,  and  in  any  event 
were  payable  at  such  office.  If  there  are  accounts  or  cash  at- 
tributable to  another  state  or  country  the  allocation  is  made  in 
accordance  with  the  rule  laid  down  in  the  statute,  unless  on 
account  of  peculiar  conditions  such  method  appears  to  be  unjust. 

After  the  foregoing  deductions  have  been  made,  there  re- 
main only  (1)  the  merchandise  and  other  tangible  personal 
property  of  a  corporation  situated  in  Massachusetts  (except 
buildings,  machinery,  conduits,  wires,  pipes  and  poles  so  far  as 
these  may  constitute  personal  property) ;  (2)  securities  wher- 
ever kept  and  wherever  the  property  which  they  represent  is 
located  which  would  be  subject  to  the  income  tax  if  owned  by 
an  individual  resident,  and  also  national  bank  stock  and  shares 
in  voluntary  associations,  trusts  and  partnerships;  (3)  such 
proportion  of  the  cash,  and  accounts  and  bills  receivable  as  is 
allocated  to  Massachusetts.  This  represents  the  corporate  excess 
unless  the  price  actually  paid  for  stock  or  the  record  of  earnings 
indicate  that  the  aggregate  capital  stock  after  the  statutory  de- 
ductions has  a  higher  value,  in  which  case  there  is  added  by  the 
commissioner  what  in  effect  amounts  to  an  item  for  "good-will." 

Definitions   Continued — Corporate   Excess   Employed  within 

the  Commonwealth 

4.  "Corporate  excess  employed  within  the  commonwealth"  by 
a  foreign  corporation,  such  proportion  of  the  fair  cash  value  of  all 
the  shares  constituting  the  capital  stock  on  the  first  day  of  April 
when  the  return  called  for  by  section  thirty-five  is  due  as  the  value  of 
the  assets,  both  real  and  personal,  employed  in  any  business  within 
the  commonwealth  on  that  date,  bears  to  the  value  of  the  total  assets 
of  the  corporation  on  said  date,  less  the  value  of  the  following : 

(a)  Works,  structures,  real  estate,  machinery,  poles,  underground 
conduits,  wires  and  pipes  owned  by  it  within  the  commonwealth  sub- 


Taxation  of  Corporations  545 

G.  L.  c.  63,  §  30,  cl.  4,  5] 

ject  to  local  taxation,  except  such  part  of  said  real  estate  as  represents 
the  interest  of  a  mortgagee; 

(&)  Securities  held  in  the  commonwealth,  the  income  of  which,  if 
any,  if  received  by  a  natural  person  resident  therein,  would  not  be 
liable  to  taxation,  except  shares  in  national  banks,  voluntary  associa- 
tions, trusts  and  partnerships.  In  determining  the  proportion  of 
assets  employed  within  the  commonwealth,  the  commissioner  may  in- 
clude such  bank  deposits  in  other  states  as  are  employed  principally 
in  the  conduct  of  the  business  in  the  commonwealth. 

The  subject  matter  of  the  foregoing  section  will  be  discussed 
more  at  length  in  connection  with  the  statutes  specifically  re- 
lating to  the  taxation  of  foreign  corporations.1 

Definitions  Continued — Net  Income 

5.  ' '  Net  income, ' '  except  as  otherwise  provided  in  sections  thirty- 
four  and  thirty-nine,  the  net  income  for  the  taxable  year  as  required 
to  be  returned  by  the  corporation  to  the  federal  government  under 
the  federal  revenue  act  of  nineteen  hundred  and  eighteen,  and,  in  the 
case  of  a  domestic  business  corporation,  such  interest  and  dividends, 
not  so  required  to  be  returned  as  net  income,  as  would  be*  taxable  if 
received  by  an  inhabitant  of  this  commonwealth ;  less,  both  in  the  case 
of  a  domestic  business  corporation  and  of  a  foreign  corporation,  in- 
terest, so  required  to  be  returned,  which  is  received  upon  bonds,  notes 
and  certificates  of  indebtedness  of  the  United  States. 

Many  taxpayers  have  complained  of  the  differences  between 
the  state  and  federal  income  tax  returns,  and  no  doubt  it  would 
make  matters  much  easier  for  the  taxpayers  if  the  returns  were 
identical  in  form ;  but  in  the  case  of  the  tax  upon  individuals  the 
fundamental  difference  in  purpose  and  character  between  the 
federal  and  the  state  income  tax  laws  creates  so  many  distinc- 
tions in  substance  that  identity  in  form  is  impracticable.1  In 
the  case  of  the  state  tax  on  corporations  it  was  however  possible 
to  use  substantially  the  same  measure  of  income  as  was  employed 
in  the  federal  income  tax  upon  corporations;  and  for  the  con- 
venience of  the  corporations  taxed  it  was  provided  that  the  re- 
turns of  income  in  the  case  of  the  state  tax  should  be  identical 

1 G.  L.  c.  63,  §40,  infra,  page  565. 
1  Supra,  G.  L.  c.  62. 


546  Taxation  in  Massachusetts 

[G.  L.  c.  63,  §  30,  cl.  5 

with  the  return  already  filed  for  the  federal  tax.  There  are  how- 
ever certain  additions  and  deductions  which  must  be  made,  in 
order  to  adapt  the  law  to  the  different  constitutional  limitations 
applicable  to  the  state  and  federal  governments.  Accordingly 
a  domestic  corporation  is  obliged  to  include  in  its  taxable  net 
income,  in  addition  to  the  income  included  in  its  federal  return, 
interest  and  dividends  which  would  be  taxable  by  the  state  if  re- 
ceived by  an  individual  inhabitant  but  which  are  not  subject 
to  the  federal  income  tax  when  received  by  a  corporation,  such 
as  interest  on  bonds  of  another  state  or  of  municipal  corporations 
therein,  or  of  the  commonwealth  or  of  municipal  corporations 
therein  if  issued  before  such  bonds  became  exempt  from  taxation, 
all  of  which  the  United  States  has  no  power  to  tax,  and  dividends 
of  corporations  which  themselves  have  paid  a  tax  to  the  United 
States,  and  which  are  not  subject  to  taxation  a  second  time  when 
received  by  another  corporation  but  which  have  no  such  claim 
of  exemption  from  the  state.  On  the  other  hand  interest  on 
United  States  bonds  is  taxable  by  the  United  States  but  is  not 
taxable  by  a  state,2  and  such  interest  is  deducted  from  the  federal 
return  before  it  becomes  the  final  measure  of  income  for  the 
purposes  of  the  state. 

As  the  statute  specifically  authorizes  such  deduction,  the 
question  whether  it  is  constitutionally  necessary,  in  view  of  the 
fact  that  the  tax  is  an  excise  on  the  franchise  of  the  corporation 
and  the  income  is  the  measure  and  not  the  subject  of  the  tax,  is 
purely  academic;3  but  a  similar  question  might  arise  in  the  case 
of  interest  on  bonds  of  territorial  governments  and  of  other  in- 
strumentalities of  the  United  States  which  are  exempt  from  state 
but  not  from  federal  taxation  and  which  are  not  permitted  by 
the  statute  to  be  deducted  from  the  net  income  of  the  corpora- 
tion for  purposes  of  state  taxation.4 

In  order  to  prevent  the  confusion  that  would  otherwise  arise, 
in  determining  net  income  as  defined  in  the  federal  act,  federal 
regulations  and  decisions  interpretative  of  the  law  are  followed 
by  the  state  authorities  where  applicable;  but  the  commissioner 
will  not  necessarily  follow  the  decision  of  the  federal  authorities 
on  questions  of  fact. 


Supra,  Part  I,  §27. 
Supra,  Part  I,  §8. 
4  Supra,  Part  I,  §27. 


■i 


Taxation  of  Corporations  547 

G.  L.  c.  63,  §  30,  cl.  6;  §31] 

Definitions  Continued — Taxable  Year 

6.  ' '  Taxable  year, ' '  the  fiscal  or  calendar  year  for  which  the  cor- 
poration was  required  to  make  its  last  return  to  the  federal  govern- 
ment due  prior  to  April  first  of  the  year  in  which  the  tax  is  to  be 
assessed,  or,  if  such  return  was  for  a  fractional  period,  a  full  year, 
including  and  ending  with  such  fractional  period. 

Deductions  Not  Allowed 

Section  31.  In  determining  the  corporate  excess  of  a  domestic 
busines  corporation,  or  the  corporate  excess  employed  within  the  com- 
monwealth by  a  foreign  corporation,  there  shall  not  be  deducted  the 
value  of  shares  in  national  banks  and  in  voluntary  associations,  trusts 
and  partnerships,  nor  of  other  securities  the  income  of  which,  if  owned 
by  a  natural  person  resident  in  this  commonwealth,  would  be  liable 
to  taxation,  nor  shall  there  be  deducted  the  value  of  any  shares  of 
stock  of  the  corporation  itself  owned  directly  or  indirectly  by  it  or  for 
its  benefit ;  and  the  commissioner,  in  determining  for  the  purposes  of 
taxation  the  value  of  the  corporate  excess  of,  or  corporate  excess  em- 
ployed within  the  commonwealth  by,  any  such  corporation,  shall  not 
take  into  consideration  any  debts  of  the  corporation  unless  he  is  satis- 
fied that  no  part  of  such  debts  was  incurred  for  the  purpose  of  re- 
ducing the  amount  of  taxes  to  be  paid  by  it,  and,  in  the  case  of  a 
domestic  business  corporation  which  is  a  subsidiary  of  a  foreign  cor- 
poration or  closely  affiliated  therewith  by  stock  ownership,  that  such 
debts  represent  only  the  fair  value  of  the  property  given  therefor. 

The  first  part  of  this  section  appears  to  have  been  enacted 
ex  majore  cautela  to  make  it  clear  that  securities  which  would 
be  taxable  either  directly  or  indirectly,  on  principal  or  income, 
to  an  individual  resident  are  not  deducted  in  determining  the 
corporate  excess.  Shares  in  national  banks  are  included  in  the 
corporate  excess,  although  they  are  also  subject  to  the  national 
bank  tax.1  Shares  in  voluntary  associations,  trusts  and  partner- 
ships are  included  in  the  corporate  excess  whether  they  would  be 
taxable  in  the  hands  of  an  individual  resident  or  reached  by  a 
tax  on  the  association  itself;  other  securities  are  not  included  in 
the  excess  unless  they  would  be  taxable  in  the  hands  of  an  in- 
dividual resident. 

1  A.  J.  Tower  Co.  v.  Commonwealth,  223  Mass.  371  (1916). 


548  Taxation  in  Massachusetts 

[G.  L.  c.  63,  §§31,32 

The  other  provisions  of  this  section  were  adopted  to  meet 
methods  of  evasion  which  had  become  common. 

Rate  of  Tax  Upon  Domestic  Corporations 

Section  32.  Except  as  otherwise  provided  in  sections  thirty- 
three  and  thirty-four,  every  domestic  business  corporation  shall  pay 
annually,  with  respect  to  the  carrying  on  or  doing  of  business  by  it, 
an  excise  equal  to  the  sum  of  the  following,  provided  that  every  such 
corporation  shall  pay  annually  a  total  excise  not  less  in  amount  than 
one  twentieth  of  one  per  cent  of  the  fair  cash  value  of  all  the  shares 
constituting  its  capital  stock  on  the  first  day  of  April  when  the  return 
called  for  by  section  thirty -five  is  due : 

(1)  An  amount  equal  to  five  dollars  per  thousand  upon  the  value 
of  its  corporate  excess. 

(2)  An  amount  equal  to  two  and  one  half  per  cent  of  that  part 
of  its  net  income,  as  defined  in  this  chapter,  which  is  derived  from 
business  carried  on  within  the  commonwealth. 

The  rate  of  the  corporate  franchise  tax  as  originally  enacted 
was  one  and  one-sixth  per  cent  of  the  valuation  of  all  the 
shares  of  each  corporation  after  the  authorized  deductions  had 
been  made,  and  there  was  no  maximum  or  minimum  limitation. 
In  1865  it  was  enacted  that  the  rate  was  to  be  fixed  by  an  appor- 
tionment of  the  whole  amount  of  money  to  be  raised  by  taxation 
upon  property  in  the  commonwealth  during  the  same  current 
year  upon  the  aggregate  valuation  of  all  the  cities  and  towns  in 
the  commonwealth  for  the  preceding  year.  No  substantial 
change  was  made  until  the  enactment  of  the  Business  Corpora- 
tion Law  in  1903,  when  the  maximum  and  minimum  limitations 
were  first  inserted.  The  tax  on  any  corporation  was  not  to  ex- 
ceed by  more  than  twenty  per  cent  a  tax  on  the  tangible  prop- 
erty and  taxable1  securities  of  the  corporation  at  the  same  rate, 
thus  limiting  the  possibility  of  a  heavy  tax  based  upon  the  high 
speculative  value  of  the  stock,  and  the  tax  was  not  to  fall  below 
one-tenth  of  one  per  cent  of  the  market  value  of  the  entire 
capital  stock  even  if  the  deductions  authorized  by  the  statute 
equaled  the  valuation  of  all  the  shares. 

1  In  the  original  statute,  apparently  by  error,  it  was  provided  that  the 
maximum  tax  should  be  based  on  securities  which  if  owned  by  a  natural  person 
resident  within  the  commonwealth  would  not  be  liable  to  taxation,  but  by  St. 
1904,  c.  261,  §1,  the  word  "not"  was  stricken  out. 


Taxation  op  Corporations  549 

G.  L.  c.  63,  §  32] 

In  1906  the  method  of  fixing  the  rate  upon  domestic  business 
corporations  was  altered  so  that  it  was  based  upon  the  average 
annual  rate  of  the  three  preceding  years,  the  annual  rate  for 
this  purpose  being  ascertained  as  before;2  and  in  1909  this 
method  of  fixing  the  rate  was  extended  to  all  corporations  sub- 
ject to  the  corporate  franchise  tax.3 

When  the  present  law  was  adopted  in  1919  the  maximum 
limitation  was  wholly  done  away  with;  the  minimum  limitation 
was  reduced  to  one  twentieth  of  one  per  cent  of  the  fair  cash 
value  of  the  aggregate  capital  stock;4  the  rate  of  taxation  upon 
the  corporate  excess  which  was  approaching  and  would  doubtless 
have  soon  passed  twenty  dollars  per  thousand  was  reduced  to 
a  fixed  rate  of  five  dollars  per  thousand,  and,  to  counterbalance 
this  decrease,  a  tax  of  two  and  one-half  per  cent  of  the  net  in- 
come derived  from  business  carried  on  in  this  commonwealth 
was  added. 

A  distinction  is  to  be  noted  between  the  phraseology  of  the 
foregoing  section  and  that  of  the  corresponding  provision  of  the 
earlier  law.  In  the  earlier  law  it  was  provided  that  every  cor- 
poration subject  to  the  act  should  pay  a  tax  upon  its  corporate 
franchise  at  the  specified  rate;5  and  under  this  provision  it  was 
held  that  a  corporation  could  not  relieve  itself  from  liability  to 
taxation  by  neglecting  to  do  business,  or  ceasing  to  do  business, 
and  that  nothing  short  of  the  loss  of  its  franchise  could  exoner- 
ate it  from  the  tax.6 

In  the  present  law  it  is  provided  that  every  domestic  business 
corporation  shall  pay  the  specified  excise  "with  respect  to  the 
carrying  on  or  doing  of  business  by  it"  and  the  question  at  once 
arises  whether  a  corporation  which  does  not  carry  on  or  do  busi- 
ness within  the  taxable  year  is  liable  to  the  tax.  With  the  large 
class  of  corporations  which  fail  to  conduct  a  profitable  business 
and  are  abandoned  by  their  stockholders  and  exist  only  in  name 
until  finally  dissolved  by  act  of  legislature,  the  question  is  purely 

2St.  1906,  c.  271,  §§9,  12. 

•St.  1909,  c.  513. 

*  It  was  provided  by  St.  1921,  c.  361  that  the  tax  assessed  under  G.  L.  c.  63, 
§32,  in  the  year  1921,  should  not  be  less  than  one-twentieth  of  one  per  cent  of 
the  corporation's  gross  receipts  from  business  assignable  to  this  commonwealth 
under  G.  L.  c.  63,  §38,  cl.  6.  This  statute  was  applicable  to  the  year  1921  only 
and  was  enacted  to  protect  the  state  from  loss  of  revenue  due  to  the  business 
conditions  prevailing  in  1920. 

"St.  1909,  c.  490,  III,  §43. 

•Attorney-General  v.  Massachusetts  Pipe  Line  Gas  Co.,  179  Mass.  15  (1901). 


550  Taxation  in  Massachusetts 

[G.  L.  c.  63,  §§  32-34 

academic,  because  such  corporations  are  without  income  and 
their  shares  have  no  value;  but  there  are  many  corporations 
which  have  ceased  to  do  any  active  business  but  which  receive 
a  substantial  income  from  their  property  and  the  shares  of  which 
are  of  great  value.  Under  statutes  of  similar  wording  it  has  been 
held  that  such  corporations  are  not  taxable;7  but  it  is  not  be- 
lieved that  it  was  the  intention  of  the  legislature  to  exempt 
such  corporations  from  taxation  under  section  thirty-two.  The 
phraseology  of  the  statute  has  however  left  the  matter  open  to 
controversy;  but  in  any  event  it  would  seem  that  if  a  domestic 
business  corporation  was  not  taxable  under  section  thirty-two  on 
the  ground  that  it  was  not  engaged  in  business  it  would  be  sub- 
ject to  the  tax  on  its  corporate  franchise  under  the  provisions 
of  sections  fifty-three  and  fifty-eight. 

Affiliated  and  Subsidiary  Corporations 

Section  33.  If  a  domestic  business  corporation  which  is  a  sub- 
sidiary of  a  foreign  corporation  or  closely  affiliated  therewith  by  stock 
ownership,  is  so  managed  that  its  books  of  account  do  not  show  its  true 
earnings,  it  shall  pay  as  a  minimum  tax  under  this  chapter  an  amount 
equal  to  twenty  dollars  per  thousand  on  its  corporate  excess,  unless  it 
shall  file  within  the  first  ten  days  of  April  a  statement,  as  of  April 
first,  of  its  net  income  showing  to  the  satisfaction  of  the  commissioner 
its  true  earnings  for  its  last  prior  fiscal  year,  eliminating  therefrom 
all  payments  to  such  other  corporation  or  its  officers  in  excess  of  the 
fair  value  of  the  property  or  services  given  therefor. 

Section  34.  If  two  or  more  domestic  business  corporations 
participated  in  the  filing  of  a  consolidated  return  of  income  to  the 
federal  government,  the  tax  under  paragraph  (2)  of  section  thirty- 
two  may,  at  their  option,  be  assessed  upon  their  combined  net  income, 
which  tax  shall  be  assessed  to  all  said  corporations  and  collected 

7  Thus  in  Attorney-General  v.  Boston  &  Albany  R.  R.  Co.,  233  Mass.  460 
(1919)  it  was  held  that  a  railroad  company  which  had  leased  its  entire  prop- 
erty to  another  company,  under  statutory  authority,  was  not  "doing  business  for 
profit"  within  the  meaning  of  a  statute  imposing  a  tax.  On  similar  facts  it  was 
held  that  a  railroad  corporation  was  not  "engaged  in  business"  within  the  mean- 
ing of  the  federal  corporation  tax  act  of  1909,  McCoach  v.  Minehill  &  Schuylkill 
Haven  R.  R.  Co.,  228  U.  S.  295  (1913)  ;  and  the  latter  statute  was  also  held  in- 
applicable to  a  corporation  whose  only  property  was  a  parcel  of  real  estate  leased 
to  a  single  lessee  for  a  long  term  and  whose  only  activity  was  to  receive  and  dis- 
tribute the  rent  therefrom.  Zonne  v.  Minneapolis  Syndicate,  220  U.  S.  187 
(1911)  ;  United  States  v.  Emery,  Bird,  Thayer  Realty  Co.,  237  U.  S.  28  (1915). 
See  also  Von  Baumbach  v.  Sargent  Land  Co.,  242  U.  S.  503   (1917). 


Taxation  of  Corporations  551 

G.  L.  c.  63,  §§  34,  35] 

from  any  one  or  more  of  them.  In  the  case  of  domestic  business  cor- 
porations thus  affiliated  and  not  electing,  under  the  foregoing  pro- 
vision, to  be  assessed  upon  their  combined  net  income,  and  in  the  fur- 
ther case  of  one  or  more  domestic  business  corporations  filing  with 
one  or  more  foreign  corporations  a  consolidated  return  of  net  income 
to  the  federal  government,  each  such  domestic  business  corporation 
shall  file  with  the  commissioner,  as  a  part  of  its  return  required  by 
this  chapter,  a  statement  of  net  income  in  such  form  as  he  may 
prescribe,  showing  its  gross  income  and  deductions  in  accordance 
with  the  law  and  regulations  governing  the  usual  federal  returns  of 
corporations  not  thus  affiliated,  and  the  net  income  thus  shown,  after 
making  deductions  therefrom  and  additions  thereto  as  provided  in 
paragraph  five  of  section  thirty,  shall  be  the  "net  income"  under  this 
chapter. 

The  provisions  of  section  thirty-three  were  adopted  for  the 
purpose  of  preventing  the  evasion  of  corporation  taxes  by  a 
method  which  had  become  common  under  the  earlier  law;  the 
provisions  of  section  thirty-four  were  adopted  for  the  purpose 
of  permitting  corporations,  whenever  practicable,  to  use  the 
same  material  in  preparing  their  returns  for  the  state  that  was 
used  in  their  federal  returns.  A  consolidated  return  cannot  how- 
ever be  filed  except  in  the  case  of  two  domestic  corporations,  or 
of  two  foreign  corporations  doing  business  in  this  common- 
wealth and  subject  to  the  provisions  of  this  chapter.  Even  if 
two  corporations  elect  to  file  a  consolidated  return  of  income, 
they  must  each  file  a  separate  statement  of  corporate  excess. 
Corporations  which  are  classed  as  "personal  service  corporations" 
under  the  federal  law  and  so  are  not  taxable  on  their  income  may 
however  use  a  copy  of  their  statement  of  income  on  their  federal 
information  returns  as  a  statement  of  their  income  on  their 
state  returns,  either  by  amending  the  form  provided  in  the 
state  return  or  substituting  a  copy  of  the  corresponding  schedule 
in  the  federal  return. 

Returns 

Section  35.  Every  domestic  business  corporation  shall,  within 
the  first  ten  days  of  April,  make  a  return  as  of  April  first,  sworn 
to  by  its  treasurer  or  assistant  treasurer,  or  in  their  absence  or  in- 
capacity by  any  other  principal  officer,  in  such  form  as  the  commis- 


552  Taxation  in  Massachusetts 

[G.  L.  c.  63,  §  35 
sioner  prescribes,  giving  (a)  a  copy  of  such  parts  as  he  may  designate 
of  the  federal  return  or  returns  for  the  year  on  the  income  of  which 
the  tax  is  to  be  assessed,  which  it  has  made  singly  or  with  one  or 
more  other  corporations,  (&)  such  other  data  as  he  requires  to  de- 
termine the  proportion  of  net  income  derived  from  business  carried 
on  within  the  commonwealth,  (c)  such  information  as  he  requires 
for  the  determination  of  the  corporate  excess.  Whenever  the  time 
for  filing  its  federal  return  has  been  extended,  the  commissioner  may 
extend  the  time  for  filing  such  return. 

The  return  of  a  domestic  corporation  is  in  effect  divided  into 
three  parts.  It  contains  (1)  a  statement  of  net  income  taken 
from  the  federal  return  filed  by  the  corporation,  with  the  correc- 
tions required  to  make  the  return  conform  to  the  state  statute.1 
(2)  A  statement  similar  to  that  required  in  returns  under  the 
earlier  law,  in  'order  that  the  commissioner  may  determine  the 
corporate  excess.  (3)  In  the  case  of  corporations  doing  business 
in  whole  or  in  part  in  other  states  or  countries,  the  information 
required  to  enable  the  commissioner  to  allocate  to  Massachusetts 
only  that  part  of  the  tax  to  which  that  commonwealth  is  en- 
titled under  the  law. 

In  preparing  the  table  of  assets  and  liabilities  there  is  no 
requirement  that  the  two  columns  balance:  that  is,  if  the  net 
assets  exceed  the  par  value  of  the  capital  stock  outstanding  the 
difference  need  not  be  entered  as  surplus,  and  if  the  net  assets 
are  less  than  the  par  value  of  the  capital  stock  the  difference 
need  not  be  entered  as  "good  will."  If  good  will  is  entered  in 
excess  of  its  actual  value,  the  only  result  will  be  that  the  cor- 
poration will  pay  more  taxes  than  the  law  requires. 

A  corporation  is  not  exonerated  from  filing  a  return  by  reason 
of  the  fact  that  it  has  received  no  income  during  the  taxable 
year.  There  is  ordinarily  no  difficulty  in  filing  a  return  of  in- 
come within  the  specified  time,  since  the  year  to  which  it  relates 
ended  three  months  previously,  and  a  return  of  income  has  al- 
ready been  filed  with  the  federal  authorities.  The  statute  how- 
ever in  respect  to  the  information  required  for  determining  the 
corporate  excess  demands  what  is  often  impossible,  by  requiring 
the  filing  of  a  balance  sheet  as  of  the  first  day  of  April  within 
the  first  ten  days  of  that  month.    In  cases  where  an  extensive 

1  G.  L.  c.  63,  §30,  cl.  5,  supra,  page  545. 


Taxation  of  Corporations  553 

G.  L.  c.  63,  §§  35,  36] 

inventory  must  be  taken,  the  time  is  often  too  short.  While 
the  commissioner  appears  to  have  no  power  to  extend  the  time 
for  filing  a  return,  unless  an  extension  has  been  granted  for 
filing  the  federal  return,  he  may  exercise  the  discretion  granted 
him  by  section  forty-nine  of  abating  the  penalty  for  a  late  re- 
turn, and  this  discretion  is  usually  exercised  whenever  there  are 
reasonable  grounds  for  the  delay. 

Returns  are  required  to  be  accompanied  by  such  memoranda, 
supporting  schedules,  and  other  statements  as  are  called  for 
by  the  forms  or  by  the  instruction  sheets  which  are  distributed 
with  them. 

Prior  to  1913  there  was  no  provision  in  the  law  that  the  tax 
returns  of  a  corporation  should  not  be  open  to  public  inspection, 
and  such  returns  were  frequently  offered  in  evidence  as  an  admis- 
sion by  the  corporation  of  the  values  stated  therein,  and  were 
held  to  be  competent  for  that  purpose,2  although  a  statement 
of  the  value  of  the  capital  stock  was  not  competent  evidence  of 
the  value  of  the  property  of  the  corporation,  because  the  value 
of  the  stock  is  dependent  upon  other  elements.3  In  1903  it  was 
provided  by  statute  that  returns  should  be  open  only  to  the 
inspection  of  the  commissioner  and  such  other  officers  of  the 
commonwealth  as  should  have  occasion  to  inspect  them  for  the 
purpose  of  assessing  or  collecting  taxes,4  and  it  was  held  that  re- 
turns filed  while  that  statute  was  in  force  could  not  be  introduced 
in  court  in  any  case  other  than  a  criminal  proceeding  directly  in- 
volving the  integrity  of  the  return.5  In  the  business  corpora- 
tion tax  act  of  1919  no  provision  was  included  with  respect  to 
the  privacy  of  returns,  and  it  would  seem  that  the  return  of  a 
business  corporation  filed  since  1919  can  be  used  in  evidence 
against  the  corporation  filing  it  in  any  case  in  which  it  is  ma- 
terial. 

Effect  of  Correction  of  Federal  Return 

Section  36.  If  the  assessment  made  by  the  federal  government 
is  based  upon  a  net  income  greater  or  less  than  the  net  income  returned 

2Brackett  v.  Commonwealth,  223  Mass.  119,  126   (1916). 

s  Union  Glass  Co.  v.  Somerville,  228  Mass.  202  ( 1917) . 

4St.  1903,  c.  437,  §48.  This  provision  was  continued  in  St.  1909,  c.  490, 
III,  §40  and  St.  1914,  c.  198,  §6. 

°Brackett  v.  Commonwealth,  223  Mass.  119,  126  (1916)  ;  Union  Glass  Co.  v. 
Somerville,  228  Mass.  202  (1917). 


554  Taxation  in  Massachusetts 

[G.  L.  c.  63,  §§  36, 37 
by  said  corporation,  or  if  an  additional  assessment  is  at  any  time 
made  on  the  ground  that  the  net  income  was  incorrectly  returned  in 
the  first  instance,  or  if,  after  the  tax  as  assessed  is  paid  to  the  federal 
government,  any  part  of  such  tax  is  refunded,  the  corporation,  within 
ten  days  after  the  receipt  of  such  notice  of  said  fact,  shall  make  return 
on  oath  to  the  commissioner  of  the  amount  by  which  the  net  income 
originally  returned  differs  from  the  net  income  on  which  the  tax  was 
computed  by  the  federal  government  upon  the  latest  determination  by 
it  of  the  proper  tax,  and  of  the  facts  giving  rise  to  the  difference.  If 
upon  such  facts  an  additional  tax  is  due  the  commonwealth,  the  com- 
missioner shall  assess  the  additional  tax,  and  the  corporation  shall, 
within  thirty  days  after  receipt  of  notice  from  the  commissioner  of 
the  amount  thereof,  pay  such  additional  tax.  If  upon  said  facts  a  less 
tax  is  due  the  commonwealth  than  that  paid  by  the  corporation,  the 
state  treasurer  shall,  upon  certification  of  the  commissioner,  repay 
within  thirty  days  such  difference  without  any  further  statutory 
appropriation  therefor. 

Income  Allocable  in  Entirety 

Section  37.  The  commissioner  shall  determine,  in  the  manner 
provided  in  this  and  the  following  section,  the  part  of  the  net  income 
of  a  domestic  corporation  derived  from  business  carried  on  within 
the  commonwealth.  The  following  classes  of  income  shall  be  allocated 
as  follows: 

(a)  Interest  and  dividends  which  would  be  taxable  under  section 
one  of  chapter  sixty-two,  if  received  by  an  inhabitant  of  the  com- 
monwealth, shall  be  allocated  to  this  commonwealth. 

(6)  Gains  realized  from  the  sale  of  capital  assets,  if  such  assets 
consist  of  intangible  property  or  if  they  consist  of  real  estate  or 
tangible  personal  property  situated  in  the  commonwealth,  shall  be 
allocated  to  this  commonwealth. 

(c)  Gains  received  from  the  sale  of  capital  assets,  if  such  assets 
consist  of  real  estate  or  tangible  personal  property  situated  outside 
the  commonwealth,  shall  not  be  allocated  in  any  part  to  this  com- 
monwealth. 

This  and  the  following  section  set  forth  the  manner  in  which 
the  legislature  has  dealt  with  the  difficult  problem  of  allocating 
to  Massachusetts  only  that  part  of  the  income  of  a  domestic  cor- 
poration to  which  this  commonwealth  is  fairly  entitled.    Prob- 


Taxation  op  Corporations  555 

G.  L.  c.  63,  §§  37,  38] 

ably  a  state  could  levy  a  franchise  tax  upon  domestic  corpora- 
tions graded  in  accordance  with  income  from  whatever  source 
derived,  but  the  legislature  has  not  sought  to  stretch  its  con- 
stitutional powers  in  such  a  way  as  to  impose  a  more  onerous 
tax  upon  domestic  corporations  than  it  may  constitutionally 
impose  upon  foreign  corporations  doing  business  within  the  com- 
monwealth. 

The  situs  of  intangible  personal  property  being  ordinarily 
at  the  domicile  of  the  owner,  and  the  domicile  of  a  domestic 
corporation  being  the  state  in  which  it  was  incorporated,  all 
income  derived  from  interest  and  dividends  which  would  be 
taxable  under  chapter  sixty-two  if  received  by  an  individual  in- 
habitant of  the  commonwealth  is  allocable  to  Massachusetts. 
It  is  to  be  noted  that  all  other  interest  and  dividends,  which 
are  taxable  to  a  corporation  although  not  to  an  individual,  are 
not  allocable  in  their  entirety  under  this  section.  In  determin- 
ing what  interest  and  dividends  would  be  taxable  to  an  indi- 
vidual, department  rulings  issued  with  respect  to  the  income 
tax  are  followed. 

The  same  principle  applied  to  gains  from  the  sale  of  capital 
assets  consisting  of  intangible  personal  property  results  in  the 
allocation  of  the  entire  income  so  derived  to  this  commonwealth ; 
and  similarly  no  question  can  be  raised  with  respect  to  the  pro- 
priety of  the  rule  by  which  the  allocation  of  the  gain  derived 
from  the  sale  of  capital  assets  consisting  of  real  estate  and  tangi- 
ble personal  property  is  made  to  depend  upon  the  location  of 
such  property.  It  is  to  be  noted  that  allocation  under  this  sec- 
tion is  made,  even  if  the  corporation  is  not  carrying  on  business 
outside  Massachusetts;  or  in  other  words,  under  no  circum- 
stances does  the  commonwealth  attempt  to  tax  the  gain  derived 
by  a  domestic  corporation  from  selling  capital  assets  consisting  of 
real  estate  and  tangible  personal  property  situated  outside  the 
commonwealth. 

Allocation  of  Remainder  of  Net  Income 

Section  38.  Income  of  the  classes  described  in  the  preceding 
section  having  been  allocated,  the  remainder  of  the  net  income  as 
defined  in  section  thirty  shall  be  allocated  as  follows: 

1.  If  the  corporation  carries  on  no  business  outside  the  common- 


556  Taxation  in  Massachusetts 

[G.  L.  c.  63,  §  38 
wealth,  the  whole  of  said  remainder  shall  be  allocated  to  this  com- 
monwealth. 

2.  If  the  corporation  carries  on  any  business  outside  the  com- 
monwealth, the  said  remainder  shall  be  divided  into  three  equal  parts : 

(a)  Of  one  third,  such  portion  shall  be  attributed  to  business 
carried  on  within  the  commonwealth  as  shall  be  found  by  multiply- 
ing said  third  by  a  fraction  whose  numerator  is  the  value  of  the  cor- 
poration's tangible  property  situated  within  the  commonwealth  and 
whose  denominator  is  the  value  of  all  the  corporation 's  tangible  prop- 
erty wherever  situated. 

( b )  Of  another  third,  such  portion  shall  be  attributed  to  business 
carried  on  within  the  commonwealth  as  shall  be  found  by  multiplying 
said  third  by  a  fraction  whose  numerator  is  the  expenditure  of  the  cor- 
poration for  wages,  salaries,  commissions  or  other  compensation  to 
its  employees,  and  assignable  to  this  commonwealth  as  hereinafter 
provided,  and  whose  denominator  is  the  total  expenditure  of  the  cor- 
poration for  wages,  salaries,  commissions  or  other  compensation  to  all 
its  employees. 

(c)  Of  the  remaining  third,  such  portion  shall  be  attributed  to 
business  carried  on  within  the  commonwealth  as  shall  be  found  by 
multiplying  said  third  by  a  fraction  whose  numerator  is  the  amount 
of  the  corporation 's  gross  receipts  from  business  assignable  to  this  com- 
monwealth as  hereinafter  provided,  and  whose  denominator  is  the 
amount  of  the  corporation's  gross  receipts  from  all  its  business. 

3.  In  a  case  where  only  two  of  the  foregoing  three  rules  are 
applicable,  the  said  remainder  of  net  income  of  the  corporation  shall 
be  divided  into  two  equal  parts  only,  each  of  which  shall  be  ap- 
portioned in  accordance  with  one  of  the  remaining  two  rules.  If  only 
one  of  the  three  rules  is  applicable,  the  part  of  the  net  income  received 
from  business  carried  on  within  the  commonwealth  shall  be  deter- 
mined solely  by  that  rule. 

4.  The  value  of  the  corporation's  tangible  property  for  the  pur- 
poses of  this  section  shall  be  the  average  value  of  such  property 
during  the  taxable  year. 

5.  The  amount  assignable  to  this  commonwealth  of  expenditure 
of  the  corporation  for  wages,  salaries,  commissions  or  other  com- 
pensation to  its  employees  shall  be  such  expenditure  for  the  taxable 
year  as  represents  the  compensation  of  employees  not  chiefly  situated 
at,  connected  with  or  sent  out  from  premises  for  the  transaction  of 


Taxation  op  Corporations  557 

G.  L.  c.  63,  §  38] 

business  owned  or  rented  by  the  corporation  outside  the  common- 
wealth. 

6.  The  amount  of  the  corporation's  gross  receipts  from  business 
assignable  to  this  commonwealth  shall  be  the  amount  of  its  gross 
receipts  for  the  taxable  year  from  (a)  sales,  except  those  negotiated 
or  effected  in  behalf  of  the  corporation  by  agents  or  agencies  chiefly 
situated  at,  connected  with  or  sent  out  from  premises  for  the  transac- 
tion of  business  owned  or  rented  by  the  corporation  outside  the  com- 
monwealth and  sales  otherwise  determined  by  the  commissioner  to  be 
attributable  to  the  business  conducted  on  such  premises,  (&)  rentals 
or  royalties  from  property  situated,  or  from  the  use  of  patents,  within 
the  commonwealth ;  provided,  that  upon  application  by  a  corporation 
which  owns  or  controls  substantially  all  the  capital  stock  of  another 
corporation,  or  by  the  corporation  so  owned  or  controlled,  the  com- 
missioner may  impose  the  tax  provided  for  by  this  chapter  upon  the 
income  of  the  two  corporations  jointly  in  the  same  manner  as  though 
they  were  a  single  corporation,  or  may,  in  such  other  manner  as  he 
shall  determine,  equitably  adjust  the  tax  of  the  applying  corporation. 

7.  If  a  corporation  maintains  an  office,  warehouse  or  other  place 
of  business  in  a  state  other  than  this  commonwealth  for  the  purpose  of 
reducing  its  tax  under  this  chapter,  the  commissioner  shall,  in  deter- 
mining the  amount  of  its  gross  receipts  from  business  assignable  to 
this  commonwealth,  include  therein  the  gross  receipts  from  sales 
attributed  by  the  corporation  to  the  business  conducted  at  such  place 
of  business  in  another  state. 

8.  In  the  case  of  consolidated  returns  of  net  income,  the  com- 
missioner shall  allocate  such  income,  so  far  as  practicable,  in  accord- 
ance with  the  above  rules. 

9.  A  rule  shall  not  be  deemed  to  be  inapplicable  merely  because 
all  the  tangible  property  or  the  expenditure  of  a  corporation  for 
wages,  salaries,  commissions  or  other  compensation,  or  the  gross 
receipts  of  the  corporation,  are  found  to  be  situated,  incurred,  or 
received  without  the  commonwealth. 

10.  From  the  net  income  allocated  to  this  commonwealth  there 
shall  be  deducted  the  same  proportion  thereof  which  the  fair  cash 
value  of  machinery  owned  by  the  corporation  and  used  in  manufac- 
turing in  the  commonwealth  bears  to  its  total  assets  employed  therein, 
and  the  amount  remaining  shall  be  its  net  income  subject  to  tax  under 
this  chapter. 


558  Taxation  in  Massachusetts 

[G.  L.  c.  63,  §  38 

In  the  foregoing  section  is  undertaken  the  difficult  task  of 
allocating  the  remainder  of  the  net  income  of  domestic  corpora- 
tions; that  is  all  of  the  net  income  as  defined  in  the  fifth  clause 
of  section  thirty  except  interest  and  dividends  which  would  be 
taxable  if  received  by  an  individual  inhabitant  of  the  common- 
wealth and  gains  from  the  sale  of  capital  assets,  all  of  which 
are  allocable  in  their  entirety  under  the  preceding  section. 

The  allocation  provided  by  section  thirty-eight  is  not  made 
in  any  event  except  in  the  case  of  a  corporation  carrying  on  busi- 
ness outside  Massachusetts.  Corporations  which  do  not  carry 
on  business  outside  the  commonwealth  are  taxable  on  their  en- 
tire net  income,  except  gains  from  the  sale  of  capital  assets  con- 
sisting of  real  estate  and  tangible  personal  property  situated 
outside  the  commonwealth. 

A  corporation  which  has  its  factories  or  stores  in  Massachu- 
setts is  not  deemed  to  be  doing  business  outside  the  state  merely 
because  it  owns  tangible  property  situated  outside  the  state, 
or  because  it  ships  goods  to  purchasers  outside  the  state,  or 
even  because  it  sends  commercial  travellers  or  other  agents  to 
solicit  business  outside  the  state.  It  is  only  when  it  maintains 
a  factory,  store  or  office  or  other  regular  or  established  place  of 
business  in  active  operation  outside  the  state  that  it  will  be 
deemed  to  be  doing  business  outside  of  Massachusetts  and  so 
entitled  to  an  allocation  of  its  income  under  section  thirty- 
eight. 

If  it  is  determined  that  a  corporation  is  doing  business  out- 
side of  Massachusetts,  three  factors  are  given  equal  weight 
in  allocating  the  income;  (1)  the  value  of  tangible  property 
belonging  to  the  corporation  situated  within  and  without  the 
commonwealth;  (2)  the  wages  and  other  compensation  paid  to 
persons  employed  within  and  without  the  commonwealth;  (3) 
the  gross  receipts  from  business  done  within  and  without  the 
commonwealth. 

The  value  of  tangible  property  is  deemed  to  be  its  average 
value,  as  ascertained  by  weekly  or  monthly  inventories,  if  avail- 
able. If  such  inventories  are  not  available,  inventories  as  of 
the  beginning  and  end  of  the  taxable  year  may  be  used,  provided 
the  relative  value  of  the  tangible  property  within  and  without 
the  commonwealth  has  remained  substantially  constant  through- 
out the  year. 


Taxation  of  Corporations  559 

G.  L.  c.  63,  §  38] 

The  wages  paid  to  persons  employed  within  the  common- 
wealth are  deemed  to  be  the  wages  paid  to  all  employees  not 
chiefly  situated  at,  connected  with  or  sent  out  from  places  of 
business  owned  or  rented  by  the  corporation  outside  the  com- 
monwealth. An  employee  is  one  who  works  for  and  under  the 
control  of  the  corporation,  and  it  does  not  include  an  independ- 
ent contractor,  or  another  corporation.  The  mode  of  payment  is 
not  conclusive ;  a  travelling  salesman  paid  on  a  commission  basis 
is  an  employee  within  the  meaning  of  the  statute  if  under  the 
control  of  the  corporation. 

The  allocation  of  gross  receipts  to  Massachusetts  is  clearly 
defined  in  the  sixth  clause  of  the  foregoing  section.  Compen- 
sation for  services  performed  by  the  corporation  should  be  in- 
cluded in  the  gross  receipts,  and  is  allocable  to  Massachusetts 
unless  performed  by  agents  or  employees  chiefly  situated  at, 
connected  with  or  sent  out  from  premises  for  the  transaction 
of  business  which  are  owned  or  rented  by  the  corporation  out- 
side of  Massachusetts. 

The  deduction  in  the  tenth  clause  is  based  primarily  upon 
the  fact  that  machinery  employed  in  manufacture  is  locally 
taxed  and  in  this  respect  differs  from  other  tangible  personal 
property  of  corporations,  and  since  other  tangible  personal  prop- 
erty of  corporations  is  reached  only  by  the  tax  on  corporate 
excess  at  the  rate  of  five  dollars  a  thousand  and  machinery  is 
taxed  at  the  local  rate  which  averages  approximately  twenty-five 
dollars  a  thousand,  corporations  engaged  in  manufacture  and 
owning  expensive  machinery  would  be  discriminated  against 
unless  a  deduction  was  made  in  their  behalf  in  the  portion  of 
the  tax  based  on  income.  Machinery  may  not  be  made  the  basis 
of  a  deduction  unless  it  is  both  owned  by  the  corporation  and 
used  in  manufacturing  in  Massachusetts.  Machinery  held  upon 
lease  and  owned  by  another  is  excluded,  even  though  the  taxes 
on  such  machinery  are  assessed  to  and  paid  by  the  lessee.  The 
relative  value  of  the  machinery  and  other  assets  employed  in 
Massachusetts  may  be  determined  by  taking  the  sum  of  the 
value  at  the  beginning  and  at  the  end  of  the  year  and  dividing 
by  two. 


560  Taxation  in  Massachusetts 

[G.  L.  c.  63,  §  39 

FOREIGN    CORPORATIONS 

Excise  on  Foreign  Corporations 

Section  39.  Every  foreign  corporation  shall  pay  annually,  with 
respect  to  the  carrying  on  or  doing  of  business  by  it  within  the  com- 
monwealth, an  excise  equal  to  the  sum  of  the  following,  provided  that 
every  such  corporation  shall  pay  annually  a  total  excise  not  less  in 
amount  than  one  twentieth  of  one  per  cent  of  such  proportion  of  the 
fair  cash  value  of  all  the  shares,  constituting  its  capital  stock  as  the 
assets,  both  real  and  personal,  employed  in  any  business  within  the 
commonwealth  on  April  first  following  the  close  of  the  taxable  year, 
bear  to  the  total  assets  of  the  corporation  employed  in  business  on 
said  date : 

( 1 )  An  amount  equal  to  five  dollars  per  thousand  upon  the  value 
of  the  corporate  excess  employed  by  it  within  the  commonwealth. 

(2)  An  amount  equal  to  two  and  one  half  per  cent  of  that  part 
of  its  net  income,  as  defined  in  section  thirty  and  in  this  section, 
which  is  derived  from  business  carried  on  within  the  commonwealth. 

If  two  or  more  foreign  corporations  doing  business  in  this  com- 
monwealth participated  in  the  filing  of  a  consolidated  return  of  in- 
come to  the  federal  government,  the  tax  under  paragraph  (2)  above 
may,  at  their  option,  be  assessed  upon  their  combined  net  income,  in 
which  case  the  tax  shall  be  assessed  to  all  said  corporations  and 
collected  from  any  one  or  more  of  them.  Foreign  corporations  thus 
affiliated  and  doing  business  in  this  commonwealth,  which  do  not  elect, 
under  the  foregoing  provision,  to  be  assessed  upon  their  combined  net 
income,  and  all  other  foreign  corporations  doing  business  in  this  com- 
monwealth, which  have  filed  with  one  or  more  corporations  not  sub- 
ject to  this  section  a  consolidated  return  of  net  income  to  the  federal 
government,  shall  each  file  with  the  commissioner,  as  a  part  of  the 
return  required  by  this  chapter,  a  statement  of  net  income  in  such 
form  as  he  may  prescribe,  showing  the  gross  income  and  deductions  in 
accordance  with  the  law  and  regulations  governing  the  usual  federal 
returns  of  corporations  not  thus  affiliated;  and  the  net  income  thus 
shown,  after  making  deductions  therefrom  and  additions  thereto  as 
provided  in  paragraph  five  of  section  thirty,  shall  be  the  "net 
income"  under  this  chapter. 

Until  1919  the  taxation  of  foreign  corporations  proceeded 
along  entirely  different  lines  from  the  taxation  of  domestic  cor- 


Taxation  of  Corporations  561 

G.  L.  c.  63,  §  39] 

porations.1  Real  estate  of  a  foreign  corporation  was  always 
without  controversy  assessed  in  the  city  or  town  in  which  it 
lay,2  and  a  foreign  corporation  was  not  treated  as  an  inhabitant 
of  the  city  or  town  in  which  it  had  its  principal  place  of  business 
in  this  commonwealth.3  In  these  respects  there  was  no  difference 
in  the  taxation  of  foreign  and  of  domestic  corporations.  It  was 
held  however  that  foreign  corporations,  unlike  domestic  cor- 
porations, were  taxable  for  personal  property  which  fell  within 
any  of  the  classes  of  property  taxable  where  situated  regardless 
of  the  owner's  domicile,4  such  as  merchandise  and  stock-in-trade 
used  in  business  or  manufacture,  machinery  employed  in  manu- 
factures, personal  property  leased  for  profit,  horses  and  cattle, 
and  conduits,  wires,  pipes  and  poles.5  In  the  Business  Corpora- 
tion Law  of  1903  it  was  provided  in  terms  that  foreign  corpora- 
tions should  be  assessed  for  their  real  estate,  machinery  and  mer- 
chandise in  the  city  or  town  in  which  it  was  situated,6  and  it 
was  held  that  this  provision  was  in  addition  to  existing  liabilities 
of  foreign  corporations  under  the  previous  statutes  and  was  not 
subject  to  the  conditions  and  qualifications  contained  in  such 
statutes,  so  that  machinery  and  merchandise  of  a  foreign  cor- 
poration was  taxable  where  situated  regardless  of  its  manner  of 
use.7  The  only  effect  of  the  statute  of  1909  providing  for  the 
taxation  of  merchandise,  machinery  and  animals  of  non-residents 
and  foreign  corporations  upon  the  taxation  of  foreign  corpora- 
tions was  to  add  animals  other  than  those  enumerated  in  the 
existing  statutes  to  the  personal  property  upon  which  such  cor- 
porations were  taxable. 

^ee  Blackstone  Mfg.  Co.  v.  Blackstone,  13  Gray  488   (1859). 

2  Hough  v.  North  Adams,  196  Mass.  290  (1907). 

'Boston  Investment  Co.  v.  Boston,  158  Mass.  461  (1893)  ;  Coffin  v.  Artesian 
Water  Co,  193  Mass.  274  (1906). 

4  These  exceptions  were  contained  in  St.  1909,  c.  490,  I,  §  23,  and  were  ap- 
parently not  intended  to  declare  what  property  should  be  taxed  and  what  ex- 
empted, but  to  decide  in  what  city  or  town  property  made  taxable  by  other 
statutes  should  be  assessed;  nevertheless  as  to  foreign  corporations  and  non- 
residents of  the  commonwealth  they  had  the  effect  of  imposing  a  tax  upon  prop- 
erty which  would  otherwise  wholly  have  escaped  taxation  in  this  commonwealth. 

"Blackstone  Manufacturing  Co.  v.  Blackstone,  13  Gray  488  (J.859)  ;  Boston 
Loan  Co.  v.  Boston,  137  Mass.  322  (1884)  ;  Singer  Manufacturing  Co.  v.  Essex 
County  Commissioners,  139  Mass.  266  (1885);  Lamson  Consolidated  Store 
Service  Co.  v.  Boston,  170  Mass.  355  (1898). 

"St.  1903,  c.  437,  §71.  It  was  held  that  the  corporation  can  be  constitu- 
tionally assessed  as  owner  instead  of  the  goods  themselves  in  Scollard  v.  Amer- 
ican Felt  Co.,  194  Mass.  127   (1907). 

7Hilliard  v.  Fells  Ice  Co.,  200  Mass.  331   (1909). 


562  Taxation  in  Massachusetts 

[G.  L.  c.  63,  §  39 

The  taxation  of  tangible  property  imposed  in  1903  as  well 
as  the  excise  on  foreign  corporations  provided  by  another  sec- 
tion of  the  same  statute,  referred  to  later,  tended  to  check  the 
practice  of  securing  incorporation  from  other  states  for  the  pur- 
pose of  doing  business  in  Massachusetts;  but  intangible  prop- 
erty, such  as  stocks,  bonds  and  notes,  and  money  and  accounts 
receivable,  was  not  subject  to  local  taxation  when  owned  by  for- 
eign corporations,  and  a  foreign  corporation  the  property  of 
which  was  largely  of  this  character  was  not  taxed  as  heavily  as  a 
domestic  corporation  owning  similar  property.  If  however  the 
shares  of  such  a  corporation  were  owned  by  residents  of  this 
state  and  did  not  escape  the  view  of  the  local  assessors,  the  for- 
eign corporation  directly  and  indirectly  was  more  severely  taxed 
than  the  domestic  corporation.  Shares  in  foreign  corporations 
owned  by  residents  of  this  state  were  taxed  to  the  Owner  in  the 
city  or  town  in  which  he  dwelt8  without  any  deduction  for 
tangible  property  of  the  corporation  subject  to  taxation  in  this 
commonwealth  or  elsewhere.9 

No  general  excise  on  foreign  corporations  was  provided  by 
law  until  1903,  but  in  that  year  a  tax  was  imposed  of  one  one-hun- 
dredth of  one  per  cent  of  the  par  value  of  the  capital  stock,  de- 
ducting local  taxes,  the  amount  of  the  excise  not  to  exceed  two 
thousand  dollars.  In  1907  this  tax  was  increased  to  one-fiftieth 
of  one  per  cent  and  the  deduction  omitted,  the  limit  of  two 
thousand  dollars  however  remaining  unchanged.  These  statutes 
were  held  inapplicable  to  a  foreign  corporation  having  its  place 
of  business  in  this  state  only  for  use  in  interstate  commerce,10 
or  to  a  foreign  corporation  for  the  taxation  of  which  there  was 
no  special  provision  in  our  statutes,  if  it  should  be  engaged  in 
the  work  of  conducting  some  kind  of  interstate  commerce  for 
hire  as  its  principal  function  and  at  the  same  time  should  be 
engaged  in  intrastate  business  so  closely  connected  with  the  in- 
terstate commerce  that  it  could  not  be  given  up  without  serious 
detriment  to  the  interstate  commerce.11  They  were  however 
held  applicable  to  corporations  engaged  in  ordinary  mercantile 
business  which  was  partly  interstate  and  partly  local,   when 

"Great  Barrington  v.  Berkshire  County  Commissioners,  16  Pick.  572  (1835)  ; 
Dwiglit  v.  Springfield  Centre  Fire  District,  11  Met.  374   (1846). 

"Dwight  v.  Mayor  &  Aldermen  of  Boston,  12  Allen  316   (1866). 

10  Attorney-General  v.  Electric  Storage  Battery  Co.,  188  Mass.  239   (1905). 

"Baltic  Mining  Co.  V.  Commonwealth,  207  Mass.  381   (1911). 


Taxation  of  Corporations  563 

G.  L.  c.  63,  §  39] 

there  was  no  insuperable  difficulty  in  separating  the  two  divi- 
sions of  the  business.12 

So  construed  they  were  sustained  by  the  supreme  court  of 
the  United  States;13  but  in  1914  a  statute  was  enacted  imposing 
an  additional  tax  of  one  one-hundredth  of  one  per  cent  upon 
the  capital  stock  of  a  foreign  corporation  in  excess  of  ten  million 
dollars,14  and  it  was  held  that  this  enactment  indicated  an  at- 
tempt to  tax  the  entire  capital  stock  of  the  corporation,  and 
thus  to  reach  property  outside  of  Massachusetts,  and  conse- 
quently rendered  the  entire  system  of  excises  unconstitutional.15 
The  repeal  of  the  1914  act  revived  the  constitutionality  of  the 
earlier  statute,10  but  left  the  system  of  taxing  foreign  corpora- 
tions in  an  unsatisfactory  condition. 

The  enactment  of  the  income  tax  law  in  191617  removed  the 
shares  of  foreign  corporations  from  the  sphere  of  local  taxation, 
and  subjected  the  dividends  of  such  corporations  to  a  moderate 
tax  which  in  many  cases  left  foreign  corporations  in  a  more 
favorable  position  than  domestic.  In  1915  a  statute  was  enacted 
requiring  foreign  corporations  to  file  with  the  commissioner 
a  list  of  their  property  subject  to  local  taxation.18  This  was 
deemed  a  great  hardship,  as  domestic  corporations  were  not  tax- 
able their  personal  property  at  all  and  individuals  were  not  re- 
quired to  file  a  list  of  such  property,  and  the  time  for  the  statute 
to  go  into  effect  was  extended  from  year  to  year  so  that  it  never 
actually  went  into  effect;19  but  its  enactment  tended  to  induce 
foreign  corporations  to  withdraw  their  opposition  to  a  reason- 
able system  of  excise  taxes. 

By  1919  it  was  realized  that  the  place  of  incorporation  was 
often  a  mere  legal  fiction,  and  that  common  sense  required  the 
taxation  of  corporations  doing  business  in  this  commonwealth 
upon  substantially  the  same  principles,  regardless  of  the  state 

12  S.  S.  White  Dental  Manufacturing  Co.  v.  Commonwealth,  212  Mass.  35 
(1912);  Keystone  Watch  Case  Co.  v.  Commonwealth,  212  Mass.  50  (1912); 
Marconi  Wireless  Tel.  Co.  v.  Commonwealth,  218  Mass.  558   (1914). 

13  Baltic  Mining  Co.  v.  Massachusetts,  231  U.  S.  68  (1913)  ;  Cheney  Bros.  v. 
Massachusetts,  246  U.  S.  146   (1918). 

14  St.  1914,  c.  724. 

15  International  Paper  Co.  v.  Massachusetts,  246  U>.  S.  135  (1918)  ;  Locomo- 
bile Co.  v.  Massachusetts,  246  U.  S.  146   (1918). 

iaSt.  1918,  c.  76,  see  supra,  Part  I,  §23. 

17  See  G.  L.  c.  62,  §1,  supra,  page  428. 

18  St.  1915,  c.  167. 

"See  St.  1917,  c.  89;  St.  1918,  c.  133. 


564  Taxation  in  Massachusetts 

[G.  L.  c.  63,  §  39 

by  which  the  charter  was  issued.  Accordingly  foreign  corpora- 
tions were  included  in  the  corporation  tax  act  of  1919  and  were 
made  taxable  in  the  same  manner  as  domestic  corporations,  ex- 
cept that  a  foreign  corporation  was  taxed  on  only  so  much  of  its 
corporate  excess  as  was  employed  in  business  in  this  common- 
wealth, and  the  allocation  of  income  from  interest  and  dividends 
and  from  the  gain  from  the  sale  of  capital  assets  was  somewhat 
different.  But  in  other  respects  the  taxation  of  domestic  and 
of  foreign  corporations  was  made  identical. 

It  is  believed  that  the  method  of  taxing  foreign  corporations 
established  by  section  thirty -nine  not  only  meets  the  objections 
which  proved  fatal  in  the  case  of  the  excise  on  foreign  corpora- 
tions imposed  by  the  legislature  in  19 14,20  since  the  statute  has 
been  drawn  with  great  care  so  as  to  exclude  the  possibility  of 
taxing  directly  or  indirectly  property  of  such  corporations  situ- 
ated outside  the  commonwealth,  but  that  it  may  also  be  consti- 
tutionally applied  to  foreign  business  corporations  having  a  place 
of  business  in  this  state  solely  for  the  purpose  of  engaging  in 
interstate  commerce,  since  payment  of  the  tax  is  not  a  condition 
precedent  to  the  doing  of  business  in  this  commonwealth,  and 
the  tax,  though  in  form  an  excise,  is  in  effect  a  tax  upon  income 
earned  and  property  located  within  the  commonwealth  at  no 
greater  rate  than  other  income  and  other  property  are  taxed.21 
Accordingly  the  narrow  distinctions  between  interstate  and  intra- 
state commerce  which  were  drawn  under  the  earlier  acts  are  of 
no  significance  under  the  present  law. 

The  tax  however  is  by  its  terms  an  excise  imposed  with 
respect  to  the  carrying  on  or  doing  of  business  within  the  com- 
monwealth, and  it  would  seem  that  a  corporation  which  does 
no  business  within  the  commonwealth  is  not  subject  to  the  tax. 
Undoubtedly,  if  a  corporation  does  business  anywhere,  and  has 
its  financial  office  in  this  commonwealth,  it  is  subject  to  the 
tax;22  but  if  it  has  definitely  and  permanently  ceased  to  do 
business  in  the  state  of  its  origin,  or  elsewhere,  it  would  seem 
that  it  is  not  taxable  in  this  commonwealth  under  the  terms  of 
the  statute  merely  because  it  maintains  an  office  here. 

'"See  supra,  Part  I,  §23,  note  8. 

21See  Supra,  Part  I,  §§20-25  inc. 

"Old  Dominion  Co.  v.  Commonwealth,  237  Mass.  269    (1921). 


Taxation  of  Corporations  565 

G.^.c.  63,  §§40,  41] 

Returns — Corporate  Excess  Employed  Within  the 

Commonwealth 

Section  40.  Every  foreign  corporation  shall  make  returns  as 
provided  in  sections  thirty-five  and  thirty-six;  and  all  provisions  of 
said  sections  shall  apply  to  such  corporations,  except  that  the  term 
"corporate  excess"  in  said  section  thirty-five  shall,  in  the  case  of  a 
foreign  corporation,  mean  the  corporate  excess  employed  by  it  within 
the  commonwealth. 

With  respect  to  a  foreign  corporation,  a  state  has  no  power 
to  tax  the  entire  capital,  even  with  deductions  for  taxable  prop- 
erty actually  located  elsewhere,  but  only  so  much  of  the  capital 
as  is  employed  within  the  state  imposing  the  tax.  The  present 
method  of  taxing  foreign  corporations  was  designed  to  comply 
with  this  constitutional  limitation.  The  definition  of  "corpor- 
ate excess  employed  within  the  commonwealth"  is  found  in  the 
fourth  clause  of  section  thirty. 

Permanent  investments  are  not  deemed  to  be  assets  employed 
in  business  unless  the  corporation  which  owns  them  is  incor- 
porated for  the  express  purpose  of  making  investments  or  unless 
such  investments  are  employed  in  the  ordinary  course  of  bus- 
iness. Tangible  property  employed  in  business  is  deemed  to  be 
employed  at  the  place  where  it  is  physically  present  and  in  use 
or  kept.  Merchandise  in  transit  will  be  deemed  to  be  employed 
at  the  factory  or  storehouse  from  which  it  was  shipped.  In  the 
case  of  intangible  property  employed  in  the  business,  the  same 
proportion  of  the  property  will  be  deemed  to  be  employed  in 
Massachusetts  as  the  proportion  of  the  remainder  of  the  income 
allocated  to  Massachusetts  under  section  forty-one;  although 
if  this  method  of  apportionment  does  not  fairly  reflect  the  true 
proportion,  another  method  will  be  employed  by  the  commis- 
sioner, either  at  his  own  motion  or  upon  the  request  of  the  cor- 
poration. 

In  determining  the  non-taxable  securities  "held  in  the  com- 
monwealth" which  are  subjects  of  deduction,  only  those  cus- 
tomarily and  usually  kept  in  Massachusetts  will  be  considered. 

Allocation  of  Income 
Section  41.     The  commissioner  shall  determine  in  the  manner 
provided  in  this  section  the  part  of  the  net  income  of  a  foreign  cor- 


566  Taxation  in  Massachusetts 

[G.L.c.  63,  §§41,  42 

poration    derived    from    business    carried    on    within    the    common- 
wealth. 

The  following  classes  of  income  shall  be  allocated  as  follows : 

(a)  Gains  realized  from  the  sale  of  capital  assets,  if  such  assets 
consist  of  real  estate  or  tangible  personal  property  situated  in  the 
commonwealth,  shall  be  allocated  to  this  commonwealth. 

(b)  Interest  received  from  any  corporation  organized  under  the 
laws  of  the  commonwealth  Or  from  any  association,  partnership  or 
trust  having  transferable  shares  and  having  its  principal  place  of 
business  in  the  commonwealth,  or  from  any  inhabitant  of  the  com- 
monwealth, except  interest  received  on  deposits  in  trust  companies  or 
in  national  banks  doing  business  in  the  commonwealth,  shall  be  allo- 
cated to  this  commonwealth. 

(c)  Gains  realized  from  the  sale  of  capital  assets  other  than 
those  named  in  paragraph  (a)  above  shall  not  be  allocated  in  any  part 
to  this  commonwealth. 

Income  of  the  foregoing  classes  having  thus  been  allocated,  the 
remainder  of  the  net  income  as  defined  in  section  thirty  shall  be  allo- 
cated as  follows: 

If  a  foreign  business  corporation  carries  on  no  business  outside 
this  commonwealth,  the  whole  of  said  remainder  shall  be  allocated  to 
this  commonwealth. 

If  a  foreign  business  corporation  carries  on  any  business  outside 
this  commonwealth,  the  net  income  taxable  under  this  chapter  shall 
be  determined  as  provided  in  section  thirty-eight. 

Section  42.  A  foreign  corporation  carrying  on  part  of  its  busi- 
ness outside  the  commonwealth  may,  in  lieu  of  the  allocating  method 
required  by  the  preceding  section  for  determining  the  amount  of 
business  assignable  to  this  commonwealth,  refuse  to  accept  such  de- 
termination by  notification  thereof  to  the  commissioner  on  or  before 
the  time  when  its  income  tax  return  under  this  chapter  is  due  to  be 
filed.  Such  a  foreign  corporation  shall,  within  thirty  days  thereafter, 
file  with  the  commissioner,  under  oath  of  its  treasurer,  a  statement  in 
such  detail  as  the  commissioner  shall  require,  showing  the  amount  of 
its  annual  net  income  derived  from  business  carried  on  within  the  com- 
monwealth. The  commissioner  may  require  such  further  information 
with  reference  thereto  as  he  may  deem  necessary  for  the  assessment 
of  the  tax,  and  shall  determine  the  proportion  of  the  net  income  re- 
ceived from  business  carried  on  within  the  commonwealth. 


Taxation  op  Corporations  567 

G.  L.  c.  63,  §§  42,  43] 

The  net  income  upon  which  a  foreign  corporation  is  taxable 
is  the  income  upon  which  it  is  taxable  under  the  federal  law, 
deducting  interest  received  from  bonds,  notes  and  certificates 
of  indebtedness  of  the  United  States  which  are  taxed  by  the 
United  States  but  which  the  state  has  no  power  to  tax.  In  this 
respect  there  is  no  difference  between  a  domestic  and  a  foreign 
corporation.  But  a  domestic  corporation,  being  in  effect  an 
inhabitant  of  the  commonwealth,  is  also  taxable  on  interest 
and  dividends  which  would  be  taxable  if  received  by  an  indi- 
vidual resident  of  the  commonwealth  but  which  are  not  taxable 
by  the  United  States.  A  foreign  corporation,  on  the  other  hand, 
not  being  an  inhabitant  of  the  commonwealth,  is  not  taxable  on 
this  class  of  income. 

In  the  allocation  of  income,  with  respect  to  gains  from  sales 
of  capital  assets,  as  the  foreign  corporation  is  not  an  inhabitant 
of  the  commonwealth,  it  is  not  taxable  on  gains  from  the  sale 
of  intangible  assets;  the  taxability  of  gains  from  the  sale  of 
tangible  assets  depends  upon  the  location  of  the  assets.  With 
respect  to  income  consisting  of  interest  received  by  a  foreign 
corporation,  the  whole  of  such  interest  received  from  inhabitants 
of  the  commonwealth  or  from  Massachusetts  corporations  and 
unincorporated  associations  (except  interest  from  deposits  in 
national  banks  and  trust  companies)  is  allocated  to  Massachu- 
setts. The  remainder  of  the  taxable  net  income  is  allocated  in 
precisely  the  same  manner  as  in  the  case  of  domestic  corpora- 
tions, except  that  in  section  forty-two  provision  is  made  for  allo- 
cation by  some  other  method  at  the  request  of  the  corporation, 
based  on  income  actually  received  from  business  carried  on  in 
this  commonwealth. 

Credit  for  Dividends  Taxed  to  the  Stockholders 

Section  43.  After  determining  the  amount  of  tax  due  from  any 
foreign  corporation  under  paragraph  (2)  of  section  thirty -nine,  the 
commissioner  shall  then  credit  the  corporation  with  a  sum  equal  to 
five  per  cent  of  the  dividends  paid  by  it,  during  the  previous  calendar 
year,  to  inhabitants  of  this  commonwealth,  and  the  amount  then  re- 
maining due  shall  be  the  amount  of  tax  to  be  levied  upon  the  cor- 
poration under  said  paragraph ;  provided,  that  if  more  than  one  half 
of  the  capital  stock  of  any  such  corporation  is  owned  by  another 


568  Taxation  in  Massachusetts 

[G.  L.  c.  63,  §  43 
foreign  corporation  not  subject  to  taxation  under  sections  thirty  to 
fifty-one,  inclusive,  but  has  stockholders  who  are  inhabitants  of  this 
commonwealth  and  are  subject  to  taxation  upon  their  income  under 
section  one  of  chapter  sixty-two,  such  corporation,  upon  filing  with 
the  commissioner  such  information  as  he  shall  deem  necessary  for  the 
purpose,  shall  be  credited  with  a  sum  equal  to  five  per  cent  of  such 
a  proportion  of  its  total  dividends  as  will  prevent  double  taxation  of 
the  income  of  the  corporation  and  of  the  dividends  of  such  other  for- 
eign corporation  actually  taxed  to  inhabitants  of  this  commonwealth. 

Dividends  from  stock  in  domestic  corporations  are  not  taxed 
in  this  commonwealth;  whereas  dividends  from  stock  in  foreign 
corporations  are  subject  to  the  income  tax  when  received  by  in- 
habitants of  this  commonwealth.  If  a  foreign  corporation  is 
taxed  on  its  income  and  the  same  income  is  taxed  in  the  hands 
of  the  individual  stockholders  the  same  income  would  be  taxed 
twice ;  and  while  double  taxation  of  this  character  is  not  uncon- 
stitutional, it  is  not  considered  equitable,  and  the  legislature  has 
attempted  to  avoid  it  by  allowing  a  deduction  from  the  tax  on 
foreign  corporations  on  account  of  dividends  paid  by  them  to 
residents  of  this  commonwealth.  This  deduction  however  does 
not  fully  cover  the  tax  paid  by  such  residents,  since  it  amounts 
to  but  five  per  cent  of  such  dividends,  and  as  the  rate  of  the 
income  tax  on  dividends  of  foreign  corporations  is  six  per  cent, 
one  per  cent  of  the  amount  of  such  dividends  is  taxed  twice. 

The  deduction  extends  to  dividends  paid  to  a  foreign  busi- 
ness corporation  not  subject  to  taxation  under  this  chapter  but 
which  owns  more  than  one  half  of  the  stock  of  a  foreign  business 
corporation  which  is  taxable.  A  corporation  is  entitled  to  a 
credit  for  the  stockholders  of  the  corporation  so  holding  its 
stock  who  are  residents  of  this  commonwealth,  provided  it  files 
with  the  commissioner  a  statement  of  the  number  of  its  shares 
owned  by  such  other  corporation,  the  names  and  addresses  of 
the  inhabitants  of  Massachusetts  to  whom  such  other  corpora- 
tion has  paid  dividends,  the  amounts  so  paid  and  actually  taxed, 
the  respective  earnings  of  both  corporations  and  such  other  in- 
formation as  may  be  required  to  determine  the  amount  of  the 
credit. 


Taxation  of  Corporations  569 

G.  L.  c.  63,  §  44] 

ASSESSMENT  AND  COLLECTION  OF  EXCISE  ON 
BUSINESS  CORPORATIONS 

Assessment  of  Excise  Tax 

Section  44.  The  commissioner  shall  determine,  from  the  returns 
required  by  this  chapter  and  from  any  other  available  information, 
the  net  income  derived  from  business  carried  on  within  the  common- 
wealth and  the  corporate  excess  of  every  domestic  business  corpora- 
tion, and  the  net  income  derived  from  business  carried  on  within 
the  commonwealth  of,  and  the  corporate  excess  employed  within  the 
commonwealth  by,  every  foreign  corporation,  and  shall  assess  thereon 
the  tax  provided  for  in  this  chapter.  Except  as  otherwise  provided 
in  this  chapter,  the  part  of  said  tax  which  is  based  upon  the  value  of 
the  corporate  excess,  or  corporate  excess  employed  within  the  com- 
monwealth, shall  be  assessed  and  collected  in  the  same  manner  and  with 
the  same  powers  as  provided  in  this  chapter  for  the  taxation  of  cor- 
porate franchises,  and  shall  be  subject  to  the  other  administrative 
provisions  thereof.  He  shall  not  determine  the  income  of  any  such 
corporation,  which  has  filed  a  return  within  the  time  prescribed  by 
law,  to  be  in  excess  of  the  income  shown  by  such  return,  without 
notifying  the  corporation  and  giving  it  an  opportunity  to  explain  the 
apparent  incorrectness  of  the  return.  For  the  purpose  of  verifying 
any  such  return,  the  commissioner  may,  within  two  years  after  Sep- 
tember first  of  the  year  in  which  such  return  was  due,  examine 
personally  or  by  deputy  or  agent  the  books  and  papers  of  the  corpora- 
tion, which  shall  be  open  to  such  officer  for  verification. 

This  section,  at  least  so  far  as  it  relates  to  the  taxation  of  the 
corporate  excess  of  business  corporations,  follows  in  general 
the  provisions  of  the  earlier  law.  It  is  to  be  noted  that  the  com- 
missioner, with  respect  to  the  tax  on  the  corporate  excess  of  a 
corporation  which  has  filed  a  return,  is  not  bound  by  the  return 
as  the  assessors  of  a  city  or  town  are  bound  in  the  case  of  the  local 
property  tax,1  but  may  determine  the  value  of  the  corporate 
excess  from  the  return  or  from  any  other  information  available, 
and  may  disregard  the  return  without  notifying  the  corporation 
of  his  intent  so  to  act.  He  may  exercise  this  power  without 
examining  the  returns  personally,  and  may  make  his  determina- 
tion of  value  through  his  deputies  and  assistants.2    With  respect 

^Id  Colony  Trust  Co.  v.  Commonwealth,  220  Mass.  409  (1915). 

2  Commonwealth  v.  New  England  Slate  &  Tile  Co.,  13  Allen  391   (1866). 


570  Taxation  in  Massachusetts 

[G.  L.  c.  63,  §  44 

to  the  tax  on  corporate  income,  if  a  corporation  has  filed  a  re- 
turn of  its  income  the  commissioner  is  not  permitted  to  disregard 
the  return  unless  he  notifies  the  corporation  and  gives  it  an 
opportunity  to  explain  the  apparent  incorrectness  of  the  return. 
This  provision  is  borrowed  from  the  statute  imposing  the  tax  on 
personal  incomes.3 

With  regard  to  the  verification  of  returns,  the  law  does  not 
respect  the  privacy  of  corporations  as  it  does  that  of  individual 
taxpayers,  and  the  commissioner  may  either  personally  or  by 
agent  examine  the  books  of  a  corporation  which  has  filed  a  re- 
turn, although  he  has  no  evidence  in  his  possession  which  jusi- 
fies  him  in  believing  the  return  to  be  fraudulent  or  incorrect.* 
The  right  of  the  commissioner  to  inspect  the  books  of  a  corpora- 
tion liable  to  taxation  was  established  under  the  original  cor- 
porate franchise  act5  and  has  continued  in  force  continuously 
since  that  time.  The  visitorial  powers  of  the  state  over  corpora- 
tions can  be  invoked  to  justify  an  examination  of  the  books 
and  papers  of  a  corporation  which  in  the  case  of  an  individual 
taxpayer  would  constitute  a  violation  of  his  constitutional 
rights.6 

The  provision  of  section  forty-four  incorporating  by  refer- 
ence in  the  case  of  the  part  of  the  tax  based  on  corporate  excess 
the  methods  of  assessment  and  collection  and  the  administra- 
tive provisions  applicable  to  the  tax  on  corporate  franchises  of 
public  service  corporations  and  trust  companies  is  of  limited 
importance  since  the  act  of  1919  has  become  a  part  of  the  chap- 
ter on  the  taxation  of  corporations.  The  administrative  provi- 
sions contained  in  sections  sixty-eight  to  eighty  inclusive  are 
in  terms  applicable  to  all  corporations  taxed  under  the  chapter, 
except  when  the  contrary  expressly  appears,  so  that  as  to  those 
sections  this  provision  is  not  necessary.  It  would  seem  that  the 
provisions  contained  in  the  last  paragraph  of  section  fifty-five, 
and  in  sections  fifty-seven  and  fifty-nine,  aimed  at  making  the 
excise  tax  and  the  local  tax  on  real  estate  complementary,  are 
the  only  portions  of  the  chapter  which  are  incorporated  into 
the  business  corporation  tax  by  this  provision. 

3G.  L.  c.  62,  §35,  supra,  page  491. 
*  Compare  G.  L.  c.  62,  §30,  supra,  page  486., 
•St.  1864,  c.  208,  §16. 

1  See  G.  L.  c.  63,  §69,  infra,  page  591  for  a  discussion  of  the  limits  upon  the 
right  to  inspect  the  books  of  a  corporation. 


Taxation  of  Corporations  571 

G.  L.  c.  63,  §§  45,  46] 

Assessment  of  Additional  Tax 

Section  45.  If  the  commissioner  discovers  from  the  verification 
of  a  return,  or  otherwise,  that  the  full  amount  of  any  tax  due  under 
sections  thirty  to  fifty-one,  inclusive,  has  not  been  assessed,  he  may, 
at  any  time  within  two  years  after  September  first  of  the  year  in 
which  such  assessment  should  have  been  made,  assess  the  same,  first 
giving  notice  to  the  corporation  to  be  assessed  of  his  intention ;  and  a 
representative  of  the  corporation  shall  thereupon  have  an  opportunity, 
within  ten  days  after  such  notification,  to  confer  with  the  commis- 
sioner as  to  the  proposed  assessment.  After  the  expiration  of  ten 
days  from  the  notification  the  commissioner  shall  assess  the  amount 
of  the  tax  remaining  due  to  the  commonwealth,  and  shall  give  notice 
to  the  corporation  so  assessed.  Any  tax  so  assessed  shall  be  payable 
to  the  state  treasurer  fourteen  days  after  the  date  of  the  notice,  and 
sections  fifty-one  and  fifty-two  shall  apply  to  a  tax  so  assessed. 

The  earlier  statutes  gave,  in  terms  at  least,  no  power  to  the 
commissioner  to  assess  an  additional  tax  upon  a  corporation 
which  had  filed  a  return  and  been  assessed  thereon,  even  if  it  ap- 
peared from  subsequent  investigation  that  the  tax  was  insuffi- 
cient, except  in  case  the  valuation  of  the  local  assessors  of  the 
real  estate  and  machinery  of  a  corporation  was  reduced  upon 
its  application  for  abatement  and  the  deduction  which  the  cor- 
poration had  previously  received  in  determining  its  corporate 
excess  was  thus  rendered  too  large.1 

Double  Assessment  on  Refusal  to  File  Proper  Return 

Section  46.  If  no  return,  or  an  incorrect  or  insufficient  return, 
has  been  filed,  and  the  corporation  so  in  default  refuses  or  neglects 
after  notice  to  file  a  proper  return,  or  if  a  fraudulent  return  has 
been  filed,  the  commissioner  shall  determine  the  income  of  the  corpora- 
tion according  to  his  best  information  and  belief,  and  shall  assess  the 
same  at  double  the  amount  so  determined,  which  additional  tax  shall 
be  in  addition  to  the  other  penalties  provided  for  by  this  chapter. 

This  provision  was  not  found  in  the  earlier  statutes  for  the 
taxation  of  corporations,  but  was  copied  from  the  similar  pro- 

1  St.  1904,  c.  442,  §2,  now  G.  L.  c.  63,  §59,  infra,  page  583. 


572  Taxation  in  Massachusetts 

[G.  L.  c.  63,  §§  46-48 

vision  in  the  law  for  the  taxation  of  personal  income,1  which 
was  in  turn  a  development  of  the  "fifty  per  cent  penalty"  so 
long  in  force  in  connection  with  the  local  property  tax.2 

Rules  and  Regulations 

Section  47.  The  commissioner  shall  make  from  time  to  time 
such  reasonable  rules  and  regulations,  consistent  with  sections  thirty 
to  fifty-one,  inclusive,  as  he  may  deem  necessary  for  carrying  out 
their  provisions. 

In  accordance  with  the  provisions  of  this  section  the  com- 
missioner has  issued  a  set  of  rules  and  regulations,  known  as 
Bulletin  No.  355,  and  a  supplement  thereto  containing  a  re- 
vision of  the  original  rules.  These  bulletins  contain  not  only 
administrative  regulations  but  also  the  department's  construc- 
tion of  certain  sections  of  the  statute,  and  are  extremely  use- 
ful; but  taxpayers  should  remember  that  while  the  administra- 
tive regulations,  when  reasonable  and  not  inconsistent  with 
the  statute,  have  the  force  of  law,  the  rulings  of  the  department 
with  respect  to  the  construction  of  the  statute  merely  indicate 
the  attitude  the  department  has  taken  and  are  in  no  sense  con- 
trolling if  the  matter  is  brought  before  the  court.    ' 

Collection 

Section  48.  Except  as  provided  by  section  forty-five,  the  com- 
missioner shall  annually,  as  soon  as  may  be  after  the  first  Monday 
of  August,  give  notice  to  the  treasurer  of  each  corporation  of  the 
amount  of  any  tax  levied  upon  it  under  sections  thirty  to  fifty-one, 
inclusive,  of  the  date  upon  which  such  amount  is  payable  and  of  the 
time  within  which  the  corporation  may  apply  for  a  correction  of  the 
tax ;  but  failure  to  receive  said  notice  shall  not  affect  the  validity  of 
the  tax.  Such  taxes  shall  be  payable  to  the  state  treasurer  within 
thirty  days  after  the  date  of  said  notice,  but  not  before  October 
twentieth.  In  the  collection  of  all  taxes  under  said  sections  thirty 
to  fifty-one,  inclusive,  the  state  treasurer  shall  have  all  the  remedies 
provided  by  this  chapter  for  the  collection  of  other  taxes  upon  cor- 
porations. 

The  notice  of  the  tax  referred  to  in  the  foregoing  section  is 

1  G.  L.  c.  62,  §36,  supra,  page  491. 
2G.  L.  c.  59,  §61,  supra,  page  287. 


Taxation  of  Corporations  573 

G.  L.  c.  63,  §§  48-52  inc.] 

what  is  ordinarily  known  as  the  tax  bill.  The  means  of  collec- 
tion are  discussed  in  connection  with  sections  seventy-two  to 
seventy-six,  inclusive. 

Penalties 

Section  49.  If  a  corporation  fails  to  file  the  returns  required  by 
sections  thirty-five,  thirty-six  and  forty  when  they  are  due,  there  shall 
be  added  to  and  become  a  part  of  the  tax,  as  an  additional  tax,  the 
sum  of  five  dollars  for  every  day  during  which  the  corporation  is  in 
default;  but  the  commissioner  may  abate  any  such  additional  tax  in 
whole  or  in  part. 

Section  50.  If  any  return  required  by  section  thirty-five,  thirty- 
six  or  forty  contains  a  false  statement  which  is  known  or,  by  the 
exercise  of  reasonable  care  might  have  been  known  to  the  officer  mak- 
ing it  to  be  false,  such  officer  and  the  corporation  shall  be  liable  for 
the  amount  of  tax  thereby  lost  to  the  commonwealth,  and  in  addition 
to  a  penalty  of  not  less  than  five  hundred  nor  more  than  five  thousand 
dollars. 

Application  for  Abatement 

Section  51.  Application  for  the  abatement  or  correction  of  any 
tax  assessed  under  sections  thirty  to  fifty,  inclusive,  may  be  made 
within  thirty  days  after  the  date  upon  which  the  notice  of  assessment 
is  sent,  and  from  the  decision  of  the  commissioner  thereon  any  cor- 
poration may  appeal  in  the  manner  provided  by  section  seventy-one. 

The  remedies  of  a  corporation  for  excessive  or  illegal  taxes 
are  discussed  in  connection  with  sections  seventy-seven  and 
seventy-eight. 

Effect  of  Unconstitutionality 

Section  52.  If  the  excise  imposed  by  section  thirty-two  on 
domestic  business  corporations,  or  that  imposed  by  section  thirty- 
nine  on  foreign  corporations,  is  declared  unconstitutional  by  a  final 
judgment,  order  or  decree  of  the  United  States  supreme  court  or  the 
supreme  judicial  court  of  the  commonwealth,  sections  thirty  to  fifty- 
one,  inclusive,  shall  be  null  and  void,  and  all  laws  repealed  or  made 
inoperative  by  chapter  three  hundred  and  fifty-five  of  the  General 
Acts  of  nineteen  hundred  and  nineteen  shall  thereupon  be  revived  and 
continue  in  full  force  and  effect  as  if  the  said  chapter  had  not  been  en- 


574  Taxation  in  Massachusetts 

[G.  L.  c.  63,  §§  52,  53 
acted.  In  such  case  the  commissioner  and  local  assessors  shall  forth- 
with assess  all  taxes  that  have  become  due  under  such  prior  laws,  and 
the  time  for  making  any  assessment  or  performing  any  other  duty 
imposed  or  privilege  granted  by  such  laws  shall  be  extended  for  a 
period  of  six  months  after  the  date  when  they  are  thus  determined 
to  be  in  force,  and  the  time  within  which  corporations  may  apply 
by  petition  to  the  supreme  judicial  court  under  section  seventy-seven 
for  the  abatement  of  the  excise  imposed  by  section  thirty-two,  or  of 
that  imposed  by  section  thirty-nine,  shall  be  extended  for  the  same 
period.  If  any  part,  section  or  subdivision  of  said  sections  thirty  to 
fifty-one,  inclusive,  other  than  the  provisions  in  sections  thirty-two 
and  thirty-nine  imposing  an  excise,  shall  be  declared  unconstitutional, 
the  validity  of  the  remaining  parts  of  said  sections  thirty  to  fifty-one, 
inclusive,  shall  not  be  affected  thereby. 

When  the  business  corporation  tax  law  of  1919  was  enacted, 
although  great  care  was  used  not  to  exceed  the  constitutional  lim- 
itations upon  legislative  power,  it  was  feared  that  the  tax  im- 
posed by  the  act  might  on  some  ground  be  held  unconstitu- 
tional either  by  the  state  or  the  federal  courts,  and  to  avoid 
the  loss  of  revenue  which  might  result  it  was  expressly  provided 
that  in  such  event  the  earlier  provisions  of  law  for  the  taxation 
of  domestic  and  foreign  business  corporations,  both  by  the  state 
and  by  the  local  assessors,  which  had  been  repealed  by  the  new 
law,  should  at  once  revive.  It  does  not  however  now  seem  prob- 
able that  it  will  be  necessary  to  invoke  this  provision  of  the  law. 

TAXATION   OF   PUBLIC   SERVICE    CORPORATIONS 
AND  TRUST  COMPANIES 

Returns 

Section  53.  Every  corporation  organized  under  general  or 
special  laws  of  the  commonwealth  for  purposes  of  business  or  profit, 
having  a  capital  stock  divided  into  shares,  except  banks  whose  shares 
are  otherwise  taxable  under  this  chapter,  except  insurance  com- 
panies with  capital  stock  and  mutual  insurance  companies  with  a 
guaranty  capital  or  permanent  fund  whose  premiums  are  otherwise 
taxable  under  this  chapter,  and  except  corporations  taxable  under 
sections  thirty  to  fifty-one,  inclusive,  in  addition  to  all  returns  re- 
quired by  its  charter,  and  in  addition  to  all  returns  otherwise  required 


Taxation  of  Corporations  575 

G.  L.  c.  63,  §§  53,  54] 

under  this  chapter,  shall  annually,  between  April  first  and  tenth, 
make  a  return  to  the  commissioner,  on  oath  of  its  treasurer,  stating 
the  name  and  place  of  business  of  the  corporation,  and  setting  forth 
as  of  April  first  of  the  year  in  which  the  return  is  made : 

First.  The  total  authorized  amount  of  its  capital  stock;  the 
amount  issued  and  outstanding  and  the  amount  then  paid  thereon; 
the  classes,  if  any,  into  which  it  is  divided ;  the  par  value  and  number 
of  its  shares ;  the  market  value  of  the  shares  of  each  class  of  its  stock 
outstanding. 

Second.  A  statement  in  such  detail  as  the  commissioner  may  re- 
quire of  the  assets,  both  within  and  without  the  commonwealth,  be- 
longing to  the  corporation,  with  the  value  thereof,  and  of  the  liabili- 
ties of  the  corporation. 

Third.  A  statement,  in  a  form  prescribed  by  the  commissioner, 
of  the  profit  or  loss  resulting  from  the  business  of  the  corporation  for 
the  twelve  months  ending  with  December  thirty-first  preceding  the 
year  in  which  the  return  is  made. 

Fourth.  A  complete  list  of  the  shareholders  of  the  corporation, 
their  residences,  the  amount  and  class  of  stock,  if  more  than  one,  be- 
longing to  each.  If  stock  is  held  as  collateral  security,  the  list  shall 
state  the  name  and  residence  of  the  pledgor  and  of  the  pledgee.  In  lieu 
of  such  list  a  railroad,  street  railway,  electric  railroad,  gas,  electric, 
water,  telephone  or  telegraph  corporation  may  file  a  statement  of  the 
number  of  its  shares  held  by  non-residents. 

So  much  of  said  return  as  relates  to  the  profit  or  loss  which  has 
resulted  from  the  business  of  the  corporation  shall  be  open  only  to 
the  inspection  of  the  commissioner,  his  deputies,  clerks  and  assistants, 
and  such  other  officers  of  the  commonwealth  as  may  have  occasion  to 
inspect  it  for  the  purpose  of  assessing  or  collecting  taxes. 

Section  54.  In  addition  to  the  facts  required  by  the  preceding 
section,  the  following  classes  of  corporations  shall  give  in  their  returns 
the  following  information : 

Railroad,  telegraph,  street  railway  and  electric  railroad  corpora- 
tions shall  state  the  whole  length  of  their  lines  and  the  length  of  their 
lines  without  the  commonwealth. 

Electric  railroad  corporations  shall  also  state  the  length  of  their 
lines  constructed  on  private  land. 

Street  railway  and  electric  railroad  corporations  shall  also  state 
the  length  of  track  operated  by  them  in  each  town  on  March  thirty- 
first  preceding  the  return,  to  be  determined  by  measuring  as  single 


576  Taxation  in  Massachusetts 

[G.  L.  c.  63,  §  54 
track  the  total  length  of  all  tracks  operated  by  them,  including  sidings 
and  turnouts,  and  including  tracks  owned  by  them,  those  which  they 
lease  and  those  over  which  they  have  trackage  rights  only,  and  the 
amount  of  dividends  paid  on  their  capital  stock  during  the  year  end- 
ing on  September  thirtieth  preceding  the  return,  and  during  each  year 
from  the  organization  of  the  company. 

Telephone  companies  incorporated  under  the  general  or  special 
laws  of  the  commonwealth,  and  manufacturing,  owning,  using,  selling 
or  licensing  others  to  use  telephones  or  other  apparatus  or  appliances 
pertaining  thereto  wholly  or  partly  within  the  commonwealth,  and 
all  such  companies  organized  without  the  commonwealth  for  the  pur- 
pose of  establishing,  owning  or  licensing  others  to  use  such  telephones, 
apparatus  or  appliances,  but  having  in  use  within  it  any  of  their  lines 
or  telephones,  shall  state,  in  such  form  as  the  commissioner  may  re- 
quire, the  facts  necessary  to  ascertain  the  deductions  authorized  by  the 
following  section.  If  the  return  of  a  domestic  telephone  company 
sets  forth  the  amount  and  market  value  of  any  stocks  in  other  cor- 
porations held  by  the  company  making  the  return  upon  which  a  tax 
has  been  assessed  and  actually  paid  either  in  this  or  in  any  other 
state  for  the  year  preceding  the  date  of  said  return,  the  commissioner 
shall  examine  the  books,  accounts  and  papers  of  such  other  corpora- 
tions so  far  as  may  be  necessary  for  the  verification  of  said  return. 

Railroad,  street  railway  and  electric  railroad  corporations  or  com- 
panies organized  elsewhere  than  in  the  commonwealth,  but  having 
lines  therein,  shall  likewise  make  the  returns  required  by  this 
section. 

Every  corporation  or  association  chartered  or  organized  without 
the  commonwealth  which  owns,  controls  or  uses  a  line  of  telegraph 
within  the  commonwealth,  shall  make  the  returns  required  in  this  and 
the  preceding  section  to  be  made  by  telegraph  companies  within 
the  commonwealth,  except  the  list  of  shareholders,  or  statement  in 
lieu  thereof  required  by  the  preceding  section ;  and  all  telegraph 
lines  within  the  commonwealth  controlled  and  used  by  such  cor- 
poration or  association,  shall,  for  the  purposes  of  this  chapter,  be 
deemed  to  be  a  part  of  its  own  lines. 

Sections  fifty-three  to  sixty  inclusive  contain  the  provisions 
now  in  force  which  impose  a  tax  on  corporate  franchises  based 
wholly  upon  the  aggregate  value  of  the  capital  stock  less  such 
deductions  as  are  authorized  by  law,  and,  in  general,  continue 


Taxation  of  Corporations  577 

G.  L.  c.  63,  §  54] 

in  force  the  provisions  for  the  taxation  of  corporations  which 
were  in  effect  prior  to  the  enactment  of  the  law  for  the  taxation 
of  business  corporations  in  1919.  As  national  banks,  savings 
banks  (including  the  savings  departments  of  trust  companies), 
co-operative  banks  and  insurance  companies  were  already  taxa- 
ble under  other  provisions  of  law,  and  the  1919  act  withdrew  from 
the  scope  of  the  old  corporate  franchise  tax  domestic  business 
corporations,  although  sections  fifty-three  to  sixty  inclusive 
in  terms  impose  a  tax  upon  all  domestic  corporations  organized 
for  profit  having  a  capital  stock  divided  into  shares  (as  dis- 
tinguished from  municipal  corporations  and  educational  or  char- 
itable institutions  and  fraternal  or  social  organizations)  subject 
to  certain  specified  exceptions,  the  corporations  which  come 
within  the  exceptions  are  more  numerous  than  those  which  do 
not,  and  the  only  corporations  which  remain  subject  to  the  old 
form  of  corporate  franchise  tax  are  public  service  corporations, 
trust  companies  and  possibly  a  few  corporations  organized  by 
special  law  before  March  11,  1831. 1 

It  is  to  be  noted  that  the  statute  applies  to  foreign  railroad, 
street  railway,  electric  railroad,  telegraph  and  telephone  com- 
panies which  operate  lines  within  this  commonwealth,  and  it 
was  as  a  result  of  the  payment  of  the  franchise  tax  by  this  class 
of  corporations  that  the  shares  of  the  corporations  were  exempt 
from  taxation  in  the  hands  of  the  stockholders  before  the  enact- 
ment of  the  income  tax  law,  and  that  dividends  paid  by  such  cor- 
porations are  not  subject  to  the  income  tax  under  the  present 
law.2 

Returns  filed  under  this  section  are,  unlike  the  returns  filed 
by  business  corporations,  privileged  against  public  disclosure  of 
the  amount  of  profit  and  loss.3 

1  The  corporations  actually  taxed  under  the  provisions  of  sections  fifty-three 
to  sixty,  inc.,  appear  to  consist  of  trust  companies,  safe  deposit  companies,  gas 
and  electric  light  companies,  street  railway  companies,  railroad  companies,  tele- 
phone and  telegraph  companies,  power  companies,  crematory  companies,  water 
companies,  aqueduct  companies,  bridge  companies  and  canal  companies.  Electric 
railroad  and  trolley  motor  companies  and  any  other  corporations  having  the 
right  to  take  land  within  the  commonwealth  by  eminent  domain  or  to  exercise 
franchises  in  public  ways  granted  by  the  commonwealth  or  by  any  county,  city 
or  town  are  also  subject  to  taxation  under  these  sections. 

•2G.  L.  c.  62,  §1  (b).  The  only  foreign  corporations  subject  to  the  tax  at 
the  present  time  are  the  American  Tel.  &  Tel.  Co.,  the  New  England  Tel.  &  Tel. 
Co.  and  the  Western  Union  Tel.  Co. 

3  See  G.  L.  c.  63,  §35,  supra,  page  551. 


578  Taxation  in  Massachusetts 

[G.  L.  c.  63,  §  55 

Valuation  and  Deductions 

Section  55.  The  commissioner  shall  ascertain  from  the  returns 
or  otherwise  the  true  market  value  of  the  shares  of  each  corporation 
required  to  make  a  return  under  section  fifty-three  or  fifty-four,  and 
shall  estimate  therefrom  the  fair  cash  value  of  all  the  shares  con- 
struing its  capital  stock  on  April  first  preceding,  which,  unless  by  the 
charter  of  a  corporation  a  different  method  of  ascertaining  such  value 
is  provided,  shall,  for  the  purposes  of  this  chapter,  be  taken  as  the 
true  value  of  its  corporate  franchise.  From  such  value  there  shall  be 
made  the  following  deductions : 

First.  In  case  of  a  railroad,  telegraph,  street  railway  or  electric 
railroad  corporation  or  company,  whether  chartered  or  organized 
in  this  commonwealth  or  elsewhere,  so  much  of  the  value  of  its  capital 
stock  as  is  proportional  to  the  length  of  that  part  of  its  line,  if  any, 
lying  without  the  commonwealth ;  and  also  the  value  of  its  works, 
structures,  real  estate,  machinery,  poles,  underground  conduits,  wires 
and  pipes,  subject  to  local  taxation  within  the  commonwealth. 

Second.  In  case  of  a  domestic  telephone  company,  the  amount  and 
market  value  of  all  stock  in  other  corporations  held  by  it  upon  which  a 
tax  has  been  paid  in  this  or  other  states  for  the  twelve  months  last 
preceding  the  date  of  the  return. 

Third.  In  case  of  a  domestic  or  foreign  telephone  company,  so 
much  of  the  value  of  its  capital  stock  as  is  proportional  to  the  number 
of  telephones  used  or  controlled  by  it,  or  under  any  letters  patent 
owned  or  controlled  by  it,  without  the  commonwealth. 

,  Fourth.  In  case  of  a  domestic  or  foreign  telephone  company,  the 
value  of  its  works,  structures,  real  estate,  machinery,  poles,  under- 
ground conduits,  wires  and. pipes,  subject  to  local  taxation  within  the 
commonwealth. 

Fifth.  In  case  of  corporations  subject  to  section  fifty-three  or 
fifty-four,  other  than  railroad,  telegraph,  telephone,  street  railway 
and  electric  railroad  corporations  or  companies,  the  value  as  found 
by  the  commissioner  of  their  works,  structures,  real  estate,  machinery, 
poles,  underground  conduits,  wires  and  pipes,  subject  to  local  taxation 
wherever  situated. 

For  the  purposes  of  this  section  the  commissioner  may  take  the 
value  at  which  any  works,  structures,  real  estate,  machinery,  poles, 
underground  conduits,  wires  and  pipes  are  assessed  at  the  place  where 


Taxation  op  Corporations  579 

G.  L.  c.  63,  §§  55,  56] 

they  are  located  as  the  true  value,  but  such  local  assessment  shall  not 

be  conclusive  of  the  true  value  thereof. 

The  principles  applicable  to  the  valuation  of  the  shares  of 
a  corporation  are  discussed  at  length  in  connection  with  statutes 
providing  for  the  valuation  of  the  shares  of  domestic  business 
corporations.1  The  decisions  interpreting  the  statutory  provi- 
sions as  to  deductions  are  also  discussed  in  the  same  connection.2 

It  is  to  be  noted  that  public  service  companies  whose  lines 
extend  into  other  states  are  taxed  on  the  "unit  system,"3  the 
share  of  Massachusetts  being  apportioned  according  to  mileage 
within  and  without  the  commonwealth  in  the  case  of  railroad, 
telegraph,  street  railway  or  electric  railroad  companies,  and  ac- 
cording to  the  number  of  telephones  within  and  without  the 
commonwealth  in  the  case  of  telephone  companies.  It  has  been 
held  by  the  supreme  court  of  the  United  States  that  the  method 
of  taxation  prescribed  by  this  section  when  applied  to  a  corpora- 
tion engaged  in  interstate  commerce  is  not  open  to  constitu- 
tional objections  either  as  an  interference  with  interstate  com- 
merce or  as  an  attempt  to  tax  property  outside  the  common- 
wealth.4 

The  commissioner  may  adopt  the  valuation  of  the  local 
assessors  of  the  real  estate  and  other  structures  locally  taxed 
in  determining  the  value  of  such  property  for  purposes  of  deduc- 
tion, but  is  not  bound  to  do  so.  The  procedure  in  case  of  con- 
flicting valuations  is  discussed  elsewhere.5 

Deduction  of  Mortgages  Held  by  Trust  Companies 

Section  56.  In  determining  under  the  preceding  section  the 
value  of  the  corporate  franchise  of  a  trust  company,  that  part  of  its 
real  estate  represented  by  its  interest  as  mortgagee  in  taxable  real 
estate  within  the  commonwealth  shall,  for  purposes  of  deduction  under 
clause  fifth  of  said  section,  be  regarded  as  the  average  amount  of 
value  of  such  part  of  its  real  estate  for  the  year  for  which  the  tax  on 
the  corporate  franchise  is  levied,  such  average  amount  of  value  to  be 

1  G.  L.  c.  63,  §30,  cl.  3,  Valuation  of  Shares,  supra,  page  536. 

2  G.  L.  c.  63,  §30,  cl.  3,  Deductions,  supra,  page  538. 

3  Supra,  Part  I,  §42. 

'Western  Union  Tel.  Co.  v.  Massachusetts,   125   U.   S.   530    (1887);    Massa- 
chusetts v.  Western  Union  Tel.  Co.,  141  U.  S.  40  (1890). 
5  See  G.  L.  c.  63,  §§57,  59,  infra,  pages  580,  583. 


580  Taxation  in  Massachusetts 

[G.  L.  c.  63,  §§  56,  57 
determined  monthly  in  such  manner  as  the  commissioner  shall  deem 
just. 

This  statute  was  enacted  in  1918,  to  take  effect  after  the 
conclusion  of  the  war.  The  only  provisions  now  in  force  specifi- 
cally applicable  to  trust  companies  in  the  chapter  relating  to 
the  taxation  of  corporations  besides  the  one  now  under  discus- 
sion are  the  statutes  relating  to  the  taxation  of  their  savings  de- 
partments and  the  minimum  tax  established  by  section  fifty- 
eight. 

It  was  provided  in  the  Public  Statutes  that  domestic  trust 
companies  and  similar  institutions  should  be  subject  to  the 
provisions  of  the  chapter  relating  to  the  taxation  of  corpora- 
tions so  far  as  the  same  were  applicable  thereto;  and  that  they 
should  be  taxed  upon  property  held  in  trust  by  them  or  deposited 
with  them  according  to  the  terms  of  their  respective  charters. 
In  1888  provision  was  made  for  the  incorporation  of  trust  com- 
panies by  general  law.  Companies  so  incorporated  were  to  be 
subject  to  the  general  corporate  franchise  tax  on  their  capital 
stock.  Deposits  which  might  be  withdrawn  on  demand  or  on 
ten  days'  notice  were  to  be  taxed  to  the  depositors.  Other  de- 
posits were  to  be  taxed  to  the  company  at  three-fourths  the  rate 
of  the  franchise  lax,  and  property  held  in  trust  which  would  be 
taxable  if  held  by  an  individual  trustee  resident  within  the 
commonwealth  was  to  be  taxed  at  the  full  rate  of  the  corporate 
franchise  tax.  The  provision  as  to  the  taxation  of  demand  de- 
posits was  retained  until  the  enactment  of  the  income  tax  act  in 
1916;  that  as  to  the  taxation  of  other  deposits  was  dropped  in 
1908.  The  tax  on  property  held  in  trust  was  reduced  in  1909 
to  the  rate  upon  which  savings  banks  are  taxed,  but  restored  to 
the  rate  of  the  corporate  franchise  tax  in  the  following  year. 
Upon  the  enactment  of  the  income  tax  act,  property  held  in 
trust  by  corporations  was  made  taxable  on  its  income  in  the 
same  manner  as  property  held  by  individual  trustees. 

Conflict  between  Valuations  of  Commissioner  and  Assessors 

Section  57.  If  the  value  of  the  works,  structures,  real  estate, 
machinery,  poles,  underground  conduits,  wires  and  pipes  of  a  cor- 
poration subject  to  local  taxation  within  the  commonwealth,  as  de- 
termined by  the  commissioner,  is  less  than  the  value  thereof  as  de- 


Taxation  of  Corporations  581 

G.  L.  c.  63,  §  57] 

termined  by  the  assessors  of  the  town  where  it  is  situated,  he  shall  give 
notice  of  his  determination  to  such  corporation ;  and,  unless  within  one 
month  after  the  date  of  such  notice  it  applies  to  said  assessors  for  an 
abatement,  and,  upon  their  refusal  to  grant  an  abatement,  prosecutes 
an  appeal  under  section  sixty-four  of  chapter  fifty-nine,  giving  notice 
thereof  to  the  commissioner,  the  valuation  of  the  commissioner  shall 
be  conclusive  upon  said  corporation. 

Entirely  apart  from  the  foregoing  provision,  a  corporation, 
in  contesting  municipal  taxation,  has  all  the  remedies  of  a 
natural  person.  It  may  apply  for  abatement  if  the  tax  is  ex- 
cessive1 or  sue  at  common  law  to  recover  it  back  if  it  is  wholly 
void.2  The  foregoing  section,  taken  in  connection  with  section 
fifty-nine,  is  required  to  complete  the  symmetry  of  the  system 
of  taxing  corporations.  The  object  of  the  legislature  in  requiring 
deductions  from  the  aggregate  value  of  the  shares  in  ascertaining 
the  amount  of  the  excise  tax  was  to  prevent  double  taxation  in 
fact  if  not  in  form  and  to  insure  that  property  of  a  corporation 
which  under  the  laws  was  subject  to  local  taxation  should  not  be 
included  in  the  valuation  upon  which  the  excise  on  the  fran- 
chise is  based.3 

Although  the  commissioner  in  making  his  deductions  may 
accept  the  valuation  of  the  local  assessors  upon  the  property  of 
a  corporation  locally  taxable  he  is  not  bound  to  do  so.  If  he 
makes  a  lower  valuation  than  the  assessors  he  is  required  to 
notify  the  corporation,  and  unless  it  applies  for  an  abatement  it 
will  be  subject  to  double  taxation.  In  such  a  case,  when  the 
application  for  abatement  is  heard,  the  corporation  may  have 
but  little  interest  in  the  outcome,  for  whatever  abatement  of 
the  property  tax  it  may  secure  is  added  to  the  excise  tax  and  if 
it  secures  no  abatement  of  the  property  tax  the  excise  tax  will 
be  proportionally  smaller.  The  commonwealth  and  the  city  or 
town  in  which  the  property  is  situated  are  the  real  parties  in 
interest  and  the  main  object  of  the  hearing  is  to  determine  what 
valuation  shall  be  binding  upon  each  of  them,  thus  affecting 

•See  for  example  Tremont  &  Suffolk  Mills  v.  Lowell,  178  Mass.  469  (1901)  ; 
Milford  Water  Co.  v.  Hopkinton,  192  Mass.  491   (1906). 

2  See  for  example  Boston  Manufacturing  Co.  v.  Newton,  22  Pick.  22  (1839)  ; 
Boston  &  Sandwich  Glass  Co.  v.  Boston,  4  Met.  181  (1842)  ;  Boston  Water  Power 
Co.  v.  Boston,  9  Met.  199  (1845)  ;  Masonic  Educational,  etc.,  Trust  v.  Boston, 
201  Mass.  320  (1909). 

8  Firemen's  Fire  Insurance  Co.  v.  Commonwealth,  137  Mass.  80  (1884). 


582  Taxation  in  Massachusetts 

[G.  L.  c.  63,  §§  57,  58 

the  amount  of  the  excise  or  tax  which  each  is  respectively  en- 
titled to  assess  or  collect.4  It  has  accordingly  been  held  that 
the  right  of  a  corporation  under  such  circumstances  to  abate- 
ment on  appeal  is  not  lost  by  its  own  previous  failure  to  file 
a  sworn  list  of  its  estate.5 

Although  the  statute  refers  to  the  section  applicable  to  ap- 
peals to  the  county  commissioners  only,  a  corporation  notified 
under  this  section  which  has  filed  no  list  may  employ  the  concur- 
rent remedy  of  an  appeal  to  the  superior  court.6 

It  is  to  be  noted  that  these  provisions  are  not  applicable  to 
the  valuation  of  the  machinery  and  other  structures  of  tele-, 
phone  and  telegraph  companies,  as  such  structures  are  valued 
by  the  commissioner  himself  and  certified  by  him  to  the  asses- 
sors.7 

Rate  of  Taxation 

Section  58.  Every  corporation  subject  to  section  fifty-three  or 
fifty-four  shall  annually  pay  a  tax  upon  its  corporate  franchise,  after 
making  the  deductions  provided  for  in  section  fifty-five,  at  a  rate 
equal  to  the  average  of  the  annual  rates  for  three  years  preceding  that 
in  which  such  assessment  is  laid,  the  annual  rate  to  be  determined  by 
an  apportionment  of  the  whole  amount  of  money  to  be  raised  by  taxa- 
tion upon  property  in  the  commonwealth  during  the  same  year,  as 
returned  by  the  assessors  of  the  several  towns  under  section  forty- 
seven  of  chapter  fifty -nine,  upon  the  aggregate  valuation  of  all  towns 
for  the  preceding  year,  as  returned  under  sections  forty-seven  and 
forty-nine  of  chapter  fifty-nine ;  but  the  total  amount  of  the  tax  to  be 
paid  by  a  trust  company  in  any  year  upon  the  value  of  its  corporate 
franchise  shall  amount  to  not  less  than  two-fifths  of  one  per  cent  of  the 
total  amount  of  its  capital  stock,  surplus  and  undivided  profits  at  the 
time  of  said  assessment,  as  found  by  the  commissioner. 

The  development  of  the  statutes  by  which  the  rate  of  taxa- 
tion upon  corporate  franchises  was  established  is  discussed  in 

4 Lowell  v.  Middlesex  County  Commissioners,  146  Mass.  403,  409  (1888). 
Although  it  is  nowhere  expressly  provided  in  the  statutes  that  if  a  corporation 
prosecutes  its  appeal  unsuccessfully  the  result  is  conclusive  against  the  commis- 
sioner and  he  must  grant  an  abatement,  the  plain  implication  of  the  statute 
justifies  the  assumption  that  this  is  the  law. 

6  Lowell  v.  Middlesex  County  Commissioners,  146  Mass.  403,  409  (1888); 
Essex  Co.  v.  Lawrence,  214  Mass.  79,  87  (1913). 

6  Essex  Co.  v.  Lawrence,  214  Mass.  79,  87   (1913). 

»  See  G.  L.  c.  59,  §§39,  40,  41,  42  and  73,  Supra,  pages  240,  303. 


Taxation  of  Corporations  583 

G.  L.  c.  63,  §§  58-60] 

connection  with  section  thirty-two.  It  is  to  be  noted  that  the 
maximum  and  minimum  limitation  established  in  1903  was  ap- 
plicable only  to  business  corporations  and  so  was  never  in  force 
in  respect  to  the  corporations  now  subject  to  the  tax  imposed  by 
this  section. 

Additional  Excise  upon  Abatement  of  Local  Tax 

Section  59.  When  the  commissioner  has  received  notice  of  an 
abatement  of  the  taxes  of  any  corporation  under  section  seventy-four 
of  chapter  fifty-nine,  he  shall  assess  upon  such  corporation  an  ad- 
ditional tax  upon  its  corporate  franchise  value,  in  such  amount  as 
shall  make  the  total  franchise  tax  equal  that  which  would  have  been 
assessed  had  the  valuation  as  established  by  said  abatement  been 
adopted  by  the  commissioner  when  making  his  original  assessment 
upon  the  corporate  franchise  value  of  such  corporation,  which  addi- 
tional tax  shall  be  paid  and  collected  as  an  addition  to  the  franchise 
tax  next  to  be  assessed  upon  said  corporation  after  such  abatement; 
but  such  additional  tax,  when  collected,  shall  be  distributed  as  if  it 
were  part  of  the  original  tax. 

It  was  originally  held  that  the  property  tax  and  the  excise 
were  not  necessarily  complementary  and  that  a  corporation  was 
not  deprived  of  its  right  to  an  abatement  of  its  property  tax  by 
the  fact  that  the  commissioner  had  accepted  the  assessors'  valu- 
ation of  the  property  in  fixing  the  amount  of  the  excise  and  that 
the  excise  had  been  paid;1  subsequently  however  the  statute 
recited  above  was  enacted,  giving  the  commissioner  the  right 
to  assess  an  additional  excise  equal  to  the  amount  of  such  abate- 
ment. 

Whenever  any  abatement  of  the  local  property  tax  is  finally 
made  to  any  corporation  taxable  under  chapter  sixty-three,  the 
assessors,  county  commissioners  or  court,  as  the  case  may  be, 
which  makes  the  abatement  is  required  by  law  to  forthwith  no- 
tify the  commissioner  of  corporations  and  taxation,  so  that  he 
may  be  in  position  to  assess  the  additional  excise  accordingly.2 

Notice  of  Tax  and  Application  for  Correction 

Section  60.    The  commissioner  shall  annually,  as  soon  as  may  be 

after  the  first  Monday  of  August,  give  notice  to  the  treasurer  of  every 

Fremont  &  Suffolk  Mills  v.  Lowell,  178  Mass.  469  (1901). 
2G.  L.  c.  59,  §74,  supra,  page  303. 


584  Taxation  in  Massachusetts 

[G.  L.  c.  63,  §§  60,  61 

corporation,  company  or  association  liable  to  any  tax  under  section 

fifty-eight,  of  the  amount  thereof,  the  time  when  due,  the  right  to 

apply  for  correction,  and  the  right  of  appeal,  all  as  herein  provided. 

Said  tax  shall  be  due  and  payable  to  the  state  treasurer  within  thirty 

days  after  the  date  of  such  notice,  but  not  before  October  twentieth. 

The  taxpayer  may  apply  to  the  commissioner,  within  thirty  days  after 

the  date  of  the  notice,  for  correction  of  the  tax,  and  if  he  so  applies, 

may,  in  default  of  settlement,  be  heard  on  such  application  by  the 

board  of  appeal. 

The  notice  referred  to  in  this  section  is  of  course  what  is 
ordinarily  known  as  the  tax  bill.  Prior  to  1919  there  was  no 
provision  of  statute  for  the  correction  of  the  tax  by  the  commis- 
sioner himself,  and  the  only  remedy  of  a  taxpayer  aggrieved 
by  the  valuation  was  to  apply  to  the  board  of  appeal,  although, 
in  practice,  an  informal  application  to  the  commsisioner  often 
resulted  in  the  correction  of  a  tax.1  In  1919  provision  was  made 
for  application  to  the  commissioner  as  a  step  preliminary  to  the 
filing  of  an  application  with  the  board  of  appeal.  The  procedure 
in  case  of  appeal  to  the  board  of  appeal  is  regulated  by  section 
seventy-one. 

Commutation  Tax  on  Street  Railways 

Section  61.  A  street  railway  or  electric  railroad  company,  in- 
cluding a  company  whose  lines  are  located  partly  within  and  partly 
without  the  commonwealth,  whether  chartered  or  organized  under  the 
laws  of  the  commonwealth  or  elsewhere,  shall  annually,  on  or  before 
October  fifteenth,  make  and  file  in  the  office  of  the  assessors  of  every 
town  where  any  part  of  the  railway  or  railroad  operated  by  it  is 
situated  a  return  signed  and  sworn  to  by  its  president  and  treasurer, 
stating,  as  of  September  thirtieth  preceding  the  return,  if  a  street 
railway  company,  the  length  of  track  operated  by  it  in  public  ways 
and  places  in  such  town,  and  also  the  total  length  of  track  operated  by 
it  in  public  ways  and  places,  and  if  an  electric  railroad  company 
stating  the  length  of  track  operated  by  it  longitudinally  upon  public 
ways  and  places  in  such  town,  and  also  the  total  length  of  track 

1  It  has  been  held  that  if  after  a  corporation  has  been  duly  notified  of  the 
tax  assessed  upon  it  the  tax  is  reduced  and  no  further  notice  given  to  the  cor- 
poration the  tax  is  not  invalidated,  for  the  reduction  may  be  presumed  to  have 
been  made  with  the  assent  of  the  corporation.  Commonwealth  v.  New  England 
Slate  &  Tile  Co.,  13  Allen  391   (1866). 


Taxation  of  Corporations  585 

G.  L.  c.  63,  §§  61-63] 

operated  by  it,  such  total  length  of  track  in  the  case  of  each  kind 
of  company  being  determined  as  provided  in  section  fifty-four.  Such 
return  shall  also  state  the  amount  of  the  gross  receipts  of  the  company 
during  the  year  ending  on  September  thirtieth  preceding,  including 
therein  all  amounts  received  by  it  from  the  operation  of  its  railway 
or  railroad,  but  excluding  income  derived  from  the  sale  of  power, 
rental  of  tracks  or  other  sources. 

Section  62.  Annually  on  or  before  November  first,  the  assessors 
of  every  town  where  a  street  railway  or  an  electric  railroad  is  opera- 
ted, including  a  company  whose  lines  are  located  partly  within  and 
partly  without  the  commonwealth,  whether  chartered  or  organized 
under  the  laws  of  the  commonwealth  or  elsewhere,  shall  assess  on 
each  company  described  in  the  preceding  section  operating  a  railway 
or  railroad  therein  an  excise  of  an  amount  equal  to  such  proportion 
of  the  following  percentages  of  the  gross  receipts  of  such  company  as, 
in  the  case  of  a  street  railway  company,  the  length  of  tracks  operated 
by  it  in  public  ways  and  places  of  such  town  bears  to  the  total  length 
of  tracks  operated  by  it  in  public  ways  and  places,  and  in  the  case  of 
an  electric  railroad  company  as  the  length  of  tracks  operated  by  it 
longitudinally  in  public  ways  and  places  of  such  town  bears  to  the 
total  length  of  tracks  operated  by  it. 

The  percentages  shall  be  based  upon  the  annual  gross  receipts  for 
each  mile  of  track  as  follows,  and  computed  upon  the  aggregate  of 
said  annual  gross  receipts:  four  thousand  dollars  or  less,  one  per 
cent;  more  than  four  thousand  dollars  and  less  than  seven  thousand, 
two  per  cent ;  more  than  seven  thousand  dollars  and  less  than  fourteen 
thousand,  two  and  one  quarter  per  cent ;  more  than  fourteen  thousand 
dollars  and  less  than  twenty-one  thousand,  two  and  one  half  per 
cent ;  more  than  twenty-one  thousand  dollars  and  less  than  twenty- 
eight  thousand,  two  and  three-quarters  per  cent;  twenty-eight  thou- 
sand dollars  or  more,  three  per  cent. 

The  excise  provided  by  this  section  shall  be  in  addition  to  all 
other  taxes. 

Section  63.  Aldermen,  selectmen,  or  a  street  railway  or  an  elec- 
tric railroad  company  operating  in  their  town,  may  petition  the 
department  of  public  utilities  for  a  revision  of  the  amount  of  the 
excise  to  be  paid  by  a  company  under  the  preceding  section.  Said 
department  shall,  upon  such  petition,  after  public  notice  and  a  hear- 
ing at  which  said  aldermen  or  selectmen  and  said  company  may  sub- 
mit evidence,  determine  the  average  annual  cost  to  said  town  of  the 


586  Taxation  in  Massachusetts 

[G.  L.  c.  63,  §§  63-66  inc. 
work  described  in  section  sixty-six  done  by  it  during  the  preceding 
three  years  which  it  was  not  by  law  required  to  do  prior  to  October 
first,  eighteen  hundred  and  ninety-eight,  and  also  the  average  annual 
payment  made  by  said  company  to  said  town  under  and  pursuant 
to  the  preceding  section  during  said  three  years;  and  having  de- 
termined said  average  annual  cost  and  average  annual  payments,  said 
department  shall  fix  the  proportion  of  a  percentage  of  the  gross  re- 
ceipts which  shall  be  paid  as  an  excise  under  said  section  by  the 
company  to  said  town  annually  thereafter,  said  percentage  to  be 
fixed  at  such  a  rate  as  will  be  necessary  to  yield  to  said  town  annually 
thereafter  an  amount  equal  to  the  average  annual  cost  to  said  town 
determined  as  aforesaid ;  and  the  percentage  so  fixed  shall  not  again 
be  changed  for  the  period  of  three  years,  and  then  only  in  the  man- 
ner herein  provided. 

Section  64.  The  department  of  public  utilities  may  at  any  time, 
upon  petition  therefor  by  a  town  entitled  to  a  part  of  the  excise  paid 
by  a  street  railway  or  an  electric  railroad  company,  after  such  notice 
as  the  department  may  order  to  all  other  towns  entitled  to  share  in 
the  excise  paid  by  said  company,  and  after  a  hearing,  determine  as  to 
the  distribution  thereof  among  the  several  towns  where  such  com- 
pany operates  any  part  of  its  railway  or  railroad,  and  fix  the  pro- 
portions thereof  to  which  they  shall  respectively  be  entitled,  which 
shall  thereafter  be  the  proportions  of  said  excise  to  be  assessed  upon 
said  company,  instead  of  the  proportion  based  upon  length  of  tracks 
as  provided  in  section  sixty-two. 

Section  65.  Prior  to  November  fifteenth  in  each  year  the  asses- 
sors of  every  town  shall  notify  the  collector  of  taxes  thereof  of  the 
amount  of  excise  assessed  therein  under  section  sixty-two,  and  the 
collector  shall  forthwith  notify  the  treasurer  of  each  street  railway 
and  electric  railroad  company  of  the  amount  of  excise  so  assessed 
upon  it,  which  shall  become  due  and  payable  within  thirty  days  after 
receipt  of  such  notice.  The  provisions  of  chapter  sixty,  so  far  as 
appropriate,  shall  apply  to  the  collection  of  such  excise. 

Section  66.  All  taxes  collected  from  a  street  railway  or  an  elec- 
tric railroad  company  and  paid  to  a  town  under  the  preceding  sec- 
tion, section  twenty-five  of  chapter  fifty-eight  or  section  twenty-eight 
of  chapter  five  hundred  and  seventy-eight  of  the  acts  of  eighteen  hun- 
dred and  ninety-eight,  shall  be  applied  in  the  case  of  street  railway 
companies  toward  the  repair  and  maintenance  of  the  public  ways  and 
the  removal  of  snow  therefrom  within  such  town,  and  in  the  case  of 


Taxation  of  Corporations  587 

G.  L.  c.  63,  §  66] 

electric  railroad  companies  shall  be  applied  toward  the  construction, 
repair  and  maintenance  of  the  public  ways  and  places  where  the 
tracks  of  such  company  are  located,  and  to  the  removal  of  snow  from 
such  public  ways  and  places  within  such  towns. 

Prior  to  1898  there  was  no  special  provision  for  the  taxation 
of  street  railway  companies,  and,  when  incorporated  in  this  com- 
monwealth, they  were  taxed  just  as  other  domestic  corporations, 
paying  the  local  tax  on  their  real  estate  and  the  excise  on  their 
capital  stock.  They  were  bound  to  keep  in  repair  that  portion 
of  the  street  which  lay  within  their  tracks,1  and  in  many  in- 
stances were  subject  to  various  other  burdens  imposed  as  con- 
ditions of  the  grant  of  their  locations.  Some  of  these  conditions 
were  of  doubtful  validity,  and  in  the  rapid  extension  of  street 
railway  construction  which  took  place  in  the  final  decade  of  the 
last  century  the  whole  subject  of  the  relations  between  street 
railway  companies  and  the  municipalities  in  which  their  tracks 
lay  became  unsatisfactory  and  confused.  The  question  whether 
street  railways  should  make  a  direct  payment  for  their  use  of 
the  streets  to  the  municipalities  in  which  their  tracks  were 
located  was  brought  to  the  attention  of  the  legislature  by  Gov- 
ernor Wolcott  in  1897.  The  result  was  the  appointment  of  a 
commission  to  investigate  the  subject  of  the  relationship  of 
municipalities  and  street  railway  companies2  and  in  the  follow- 
ing year  a  complete  revision  was  made  of  the  system  of  taxing 
such  companies  and  obtaining  compensation  for  their  use  and 
disturbance  of  the  streets.3 

In  the  first  place,  the  regular  corporate  franchise  tax  upon 
the  capital  stock  of  such  street  railways  as  maintained  lines 
both  within  and  without  the  commonwealth  was  proportioned 
to  the  percentage  of  miles  of  line  within  the  commonwealth  to 
the  entire  mileage  of  the  company  and  imposed  regardless  of 
the  place  of  incorporation,4  and  instead  of  being  distributed  in 
accordance  with  the  residence  of  the  stockholders,  it  was  dis- 
tributed in  proportion  to  the  mileage  of  track  in  the  different 
cities  and  towns  in  which  the  railway  was  located.5 

»P.  S.  c.  113,  §32. 

-  St.  1897,  c.  509. 

8  St.  1898,  c.  578. 

*St.  1898,  c.  417,  now  G.  L.  c.  63,  §55,  supra,  page  575. 

0  St.  1898,  c.  578,  §4,  now  G.  L.  c.  58,  §22,  supra,  page  177. 


588  Taxation  in  Massachusetts 

[G.  L.  c.  63,  §  66 

In  the  second  place,  an  additional  corporate  franchise  tax 
was  imposed  upon  street  railway  companies  the  locations  of 
which  proved  to  be  especially  profitable.6  This  tax  was  based 
upon  the  amount  of  the  annual  dividends,  was  assessed  by  the 
commonwealth  and  distributed  among  the  various  towns  in  pro- 
portion to  the  mileage  therein  of  the  railway  assessed. 

In  the  third  place,  the  obligation  to  repair  portions  of  the 
highway,  whether  imposed  by  statute  or  franchise,  was  com- 
muted to  an  annual  money  payment  based  upon  the  gross  re- 
ceipts per  mile  of  track,7  assessed  and  collected  by  the  cities  and 
towns  in  which  the  tracks  lay.8  This  change  in  the  terms  of  a 
franchise  could  be  effected,  it  was  held,  against  the  wishes  of 
the  municipalities  concerned,  without  violating  that  clause  of 
the  constitution  which  prohibits  the  impairment  of  the  obliga- 
tion of  contracts.9 

These  various  taxes  were  cumulative.  The  money  derived 
from  the  additional  franchise  and  commutation  taxes  is  required 
to  be  expended  upon  the  maintenance  of  the  streets  in  which 
the  tracks  are  situated.10  The  commutation  tax  is  not  an  excise 
upon  the  franchise  of  the  street  railway  company  as  a  corpora- 
tion, or  upon  its  right  to  exist  and  do  business,  but  is  exacted 
for  the  privilege  of  operating  the  street  railway  upon  public 
ways.  The  tax  is  payable  as  long  as  the  railway  is  operated, 
even  if  the  company  is  in  the  hands  of  a  receiver.11 

In  1906  elaborate  provisions  were  made  for  the  regulation 
of  electric  railroads  operating  principally  upon  private  rights  of 
way.12  They  were  made  subject  to  the  additional  corporate 
franchise  tax,  and,  so  far  as  they  maintained  tracks  in  the  public 
ways,  to  the  commutation  tax  as  well.    It  has  been  held  that  a 

•St.  1898,  c.  578,  §3,  repealed  by  St.  1919,  c.  349,  §18. 

7  In  Greenfield  &  Turner's  Falls  Street  Railway  Co.  v.  Greenfield,  187  Mass. 
352  (1905),  it  was  held  that  in  computing  the  annual  gross  receipts  for  each  mile 
of  track,  the  total  gross  receipts  should  be  divided  by  the  number  of  miles  of  all 
tracks  operated  by  the  company,  whether  on  public  highways  or  private  land. 
In  Natick  &  Cochituate  Street  Railway  Co.  v.  Wellesley,  207  Mass.  514  (1911), 
it  was  held  that  the  gross  receipts  of  the  year  should  be  divided  by  the  number 
of  miles  of  track  on  the  thirtieth  day  of  September,  regardless  of  any  changes  of 
mileage  that  have  taken  place  during  the  year. 

eG.  L.  c.  63,  §62. 

•Springfield  v.  Springfield  St.  Ry  Co.,  182  Mass.  41  (1902);  Worcester  v. 
Worcester  St.  Ry  Co.,  182  Mass.  49  (1902),  affirmed,  196  U   S.  539   (1905). 

10St.  1906,  c.  463,  Part  III,  §137,  now  G.  L.  c.  63,  §66. 

"Collector  of  Lakeville  v.  Bay  State  St.  Ry  Co.,  234  Mass.  336  (1920). 

12  St.  1906,  c.  516,  now  G.  L.  c.  162. 


Taxation  op  Corporations  589 

G.L.  c.  63,  §§66,  67] 

corporation  operating  freight  cars  in  the  public  streets  by  steam 
the  charter  of  which  imposed  upon  it  all  the  duties  provided  by- 
general  law  for  street  railway  companies  is  subject  to  the  commu- 
tation tax.13 

In  recent  years  the  operation  of  street  railways  has  tended 
to  become  unprofitable,  and  the  assessment  of  these  cumulative 
taxes  contributed  toward  the  abandonment  of  the  weaker  lines 
and  the  charging  of  increasing  fares  upon  those  which  remained. 
In  1919  the  dividend  tax  was  repealed;14  and  the  assessment  of 
the  commutation  tax  was  suspended  for  the  two  following 
years.15  In  1921  the  suspension  was  extended  for  two  years 
more;16  and  there  is  some  question  whether  the  tax  will  ever 
again  be  enforced.17 

MISCELLANEOUS    PROVISIONS    APPLICABLE    TO 

ALL    CORPORATIONS 
Excise  on  Corporations  Interested  in  Ships  and  Vessels 

Section  67.  The  commissioner  shall  assess  annually  as  of  April 
first  an  excise  tax  upon  the  interest  of  every  corporation  organized 
under  the  laws  of  this  commonwealth  and  having  a  place  of  business 
therein,  in  any  ship  or  vessel  which  has,  during  the  period  of  its  busi- 
ness in  the  year  preceding  said  April  first,  been  engaged  in  interstate 

"MacDonald  v.  Union  Freight  R.  R.  Co.,  190  Mass.  123  (1906). 

"St.  1919,  c.  349,  §18. 

"St.  1919,  c.  370. 

"  St.  1921,  c.  406. 

17  Special  provision  for  the  taxation  of  the  Boston  Elevated  Railway  Com- 
pany was  made  in  1897  (St.  1897  c.  500,  §10)  and  the  company  was  exempted 
from  the  operation  of  the  general  legislation  of  the  following  year.  St.  1918,  c 
578,  §28.  The  tax  was  hased  on  gross  earnings,  and  the  gross  earnings,  it  was 
held,  included  only  those  accruing  from  all  lines  of  railway  operated  by  it  as  a 
common  carrier,  and  did  not  include  income  derived  from  other  corporate  prop- 
erty. Boston  Elevated  Ry.  Co.  v.  Commonwealth,  199  Mass.  96*  (1908).  The  sec- 
tion of  the  statute  excepting  the  Boston  Elevated  Railway  Company  from  the 
general  street  railway  law  taken  literally  appeared  to  include  all  railways  on 
streets  upon  which  the  Boston  Elevated  Railway  Company  had  locations,  but  it 
was  held  not  to  include  any  railway  companies  other  than  the  one  named.  Boston 
v.  Union  Freight  Railroad  Co.,  181  Mass.  205  (1902).  In  1917  the  special  tax 
upon  the  Boston  Elevated  Railway  Company  was  abolished,  and  it  was  pro- 
vided that  the  company  should  be  taxed  as  if  it  were  a  street  railway  company, 
and  should  in  addition  pay  each  year  a  sum  equal  to  the  excess  of  any  dividends 
over  six  per  cent  paid  by  it  during  the  year,  Sp.  Acts  1917,  c.  373,  IV.  In  1918, 
when  the  company  became  subject  to  public  operation,  all  of  the  special  provisions 
in  regard  to  the  taxation  of  the  company  were  repealed,  but  it  was  also  provided 
that  nothing  in  the  fact  of  public  operation  should  affect  the  liability  of  the 
company  and  its  stockholders  to  taxation.     Sp.  Acts  1918,  c.  159,  §§2,  17. 


590  Taxation  in  Massachusetts 

[G.  L.  c.  63,  §  67 
or  foreign  carrying  trade,  which  tax  shall  be  one-third  of  one  per 
cent  upon  the  value  of  such  interest  as  determined  by  him.  Such  tax 
shall  become  due  and  shall  be  collected  at  the  same  time  and  in  the 
same  manner  as  other  taxes  assessed  to  such  corporations.  The  presi- 
dent and  treasurer  of  every  such  corporation  owning  an  interest  in 
any  such  ship  or  vessel  shall  annually,  within  thirty  days  after  April 
first,  make  a  return  to  the  commissioner,  on  oath,  setting  forth  in 
detail  the  name  of  the  ship  or  vessel,  the  interest  of  the  corporation 
therein,  and  the  value  of  such  interest.  If  the  commissioner  is  satis- 
fied of  the  truth  of  the  return  he  shall  deduct  said  value  from  the  fair 
cash  value  of  the  shares  of  the  corporation  as  estimated  by  him  for 
the  purpose  of  determining  the  true  value  of  its  corporate  excess,  if 
it  is  taxable  under  sections  thirty  to  thirty-eight,  inclusive,  or  of  its 
corporate  franchise,  if  it  is  taxable  under  section  fifty-eight. 

Ships  and  vessels  have  always  been  the  subject  of  taxation 
in  this  commonwealth  as  personal  property.1  The  fact  that  they 
are  engaged  in  foreign  or  interstate  commerce  does  not  exempt 
them  from  taxation  as  property  under  state  authority  at  the 
domicile  of  the  owner  or  in  any  place  where  they  may  fairly 
be  said  to  have  a  situs,2  provided  they  are  taxed  at  no  greater 
rate  than  other  property,  and  a  tax  based  on  value  and  not  on 
carrying  capacity  is  not  a  violation  of  the  prohibition  against 
tonnage  duties  contained  in  the  United  States  constitution.3  In 
1881  however  a  statute  was  enacted  for  the  purpose  of  encourag- 
ing foreign  commerce  exempting  ships  and  vessels  engaged  in 
the  foreign  carrying  trade  from  taxation  and  providing  that 
the  income  derived  from  such  vessels  should  be  taxed  instead  of 
the  vessels  themselves.4  This  statute  had  no  application  to  cor- 
porations, which  of  course  had  not  been  directly  taxed  for  per- 
sonal property,  and  such  vessels,  when  owned  by  corporations, 
continued  to  be  indirectly  taxed  so  far  as  they  enhanced  the 
value  of  the  capital  stock  of  the  corporations  which  owned  them. 
In  1902  the  method  of  taxing  vessels  engaged  in  the  foreign 

'St.  1780,  c.  43;  St.  1811,  c.  78;  R.  S.  c.  7,  §4;  G.  S.,  c.  11,  §4;  P.  S., 
c.  11,  §4;  R.  L.,  c.  12,  §4;  G.  L.,  c.  59,  §4,  supra,  page  191. 

2  Old  Dominion  Steamship  Co.  v.  Virginia,  198  U.  S.  299  (1905).  The  situa 
of  a  vessel  is  the  domicile  of  its  owner  unless  it  is  permanently  located  and  kept 
in  a  different  place.   Southern  Pacific  Co.  v.  Kentucky,  222  U.  S.  63  (1911). 

3  State  Tonnage  Tax  Cases,  12  Wall.  204  (1870),  and  see  also  supra,  Part  I, 
§14. 

*St.  1881,  c.  284. 


Taxation  of  Corporations  591 

G.  L.  c.  63,  §§  67-69] 

carrying  trade  was  changed  to  its  present  form  and  an  excise  tax 
of  one-third  of  one  per  cent  was  imposed,  in  lieu  of  all  other 
taxes  upon  the  interest  of  every  owner  of  such  a  vessel,  whether 
a  person,  a  partnership  or  a  corporation.5  In  1913  this  statute 
was  extended  to  include  ships  engaged  in  the  interstate  carry- 
ing trade.6  Persons  and  partnerships  since  the  enactment  of 
this  statute  pay  this  tax  to  the  towns  in  which  they  are  taxable 
for  personal  property  and  are  exempted  from  any  other  tax 
upon  their  interests  in  such  vessels,7  and  corporations  pay  this 
tax  to  the  commonwealth  and  are  entitled  to  a  deduction  in 
their  franchise  tax  on  account  of  the  value  of  their  interests 
in  such  vessels.8 


Excises  on  Special  Privileges  Not  Affected  by  this  Chapter 

Section  68.  The  taxes  imposed  by  this  chapter  upon  any  corpora- 
tion shall  not  affect  or  prevent  the  imposition  and  collection  of  any 
other  tax  now  authorized,  or  that  may  hereafter  be  authorized,  upon 
any  especial  privilege,  franchise  or  business  enjoyed  or  exercised  by 
such  corporation. 

Inspection  of  Books  and  Papers 

Section  69.  Every  corporation  taxable  under  this  chapter,  ex- 
cept a  foreign  corporation  taxable  under  section  twenty-one,  twenty- 
three  or  fifty-eight,  shall,  when  required  for  the  purposes  of  any  tax 
except  that  imposed  on  its  income  by  section  thirty-two  or  thirty -nine, 
submit  its  books  to  the  inspection  of  the  commissioner,  and  its 
treasurer  and  directors  to  examination  on  oath  relative  to  all  matters 
affecting  the  determinations  to  be  made  by  said  commissioner. 

A  corresponding  provision  is  found  in  section  forty-four 
authorizing  the  examination  of  the  books  of  a  corporation  for 
the  purpose  of  verifying  its  return  of  income,  but  in  that  sec- 
tion the  right  of  examination  is  limited  to  two  years  after  the 
filing  of  the  return,  and  there  is  no  provision  for  the  examina- 

8  St.  1902,  c.  374,  375. 
•  St.  1913,  c.  473. 

7  G.  L.  c.  59,  §8,  supra,  page  220. 

8  In  the  consolidation  of  the  General  Laws  this  statute  was  modified  to  make 
it  clear  that  it  applied  to  domestic  business  corporations  taxable  under  the  1919 
statute. 


592  Taxation  in  Massachusetts 

[G.  L.  c.  63,  §  69 

tion  on  oath  of  the  treasurer  and  directors  of  the  company.  It  is 
to  be  noted  that  the  penalty  imposed  by  section  seventy-nine  for 
refusal  to  submit  the  books  for  examination  is  limited  to  the 
public  service  corporations  and  trust  companies  taxable  under 
section  fifty-eight,  and  does  not  apply  to  business  corporations. 
If  such  corporations  refuse  to  submit  their  books  for  examination, 
the  only  means  available  to  the  commissioner  for  compelling 
them  to  comply  with  his  demand  is  a  petition  for  writ  of  man- 
damus. 

This  limitation  upon  the  right  of  inspection  is  in  accord 
with  sound  principles.  The  Massachusetts  constitution  provides 
that  no  person  shall  be  compelled  to  furnish  evidence  against 
himself1  and  protects  every  person  from  unreasonable  searches 
and  seizures  of  his  papers.2  The  prohibition  against  unreason- 
able searches  includes  any  unreasonable  compulsory  disclosure 
of  private  papers.3  A  requirement  that  a  person  submit  all  his 
books  and  papers  for  examination  without  a  specific  limitation 
to  those  required  for  the  particular  exigency  is  unreasonable;4 
and  in  any  event  no  person  should  be  compelled  to  disclose  his 
private  affairs  until  he  has  been  required  to  do  so  after  a  hear- 
ing before  a  cempetent  judicial  tribunal.5  The  statute  does  not 
authorize  an  examination  of  the  books  of  a  corporation  unless 
it  is  necessary  in  order  to  properly  ascertain  its  liability  to  taxa- 
tion under  this  chapter.6  Under  its  visitorial  powers  over  cor- 
porations, a  state  may  compel  a  corporation  to  submit  its  books 
and  papers  to  examination,  even  though  the  disclosure  thus  made 
will  lead  to  a  criminal  prosecution,7  but  it  is  in  accord  with  sound 
principles  and  possibly  essential  to  the  constitutionality  of  the 
act,  in  the  case  of  purely  private  business  corporations,  that  the 
examination  be  required  only  after  a  judicial  hearing,  in  which 
the  commissioner  is  bound  to  show  that  the  examination  is  reas- 
onably necessary  in  order  to  enforce  the  provisions  of  the  cor- 
poration tax  law. 

declaration  of  Rights,  Art.  XII. 

2  Declaration  of  Rights,  Art.  XIV. 

*Boyd  v.  United  States,  116  U.  S.  616  (1886). 

4  Hale  v.  Henkel,  201  U.  S.  43  (1906). 

'Robinson  v.  Richardson,  13  Gray  454,  458  (1859).  See  also  Consolidated 
Rendering  Co.  v.  Vermont,  207  U.  S.  541   (1908). 

6  Commonwealth  v.  Cary  Improvement  Co.,  98  Mass.  19,  22   (1867). 

THale  v.  Henkel,  201  U.  S.  43  (1906)  ;  Wilson  v.  United  States,  221  U.  S.  361 
(1911). 


Taxation  of  Corporations  593 

G.  L.  c.  63,  §§  70,  71] 

Interest  on  Overdue  Taxes 

Section  70.  Corporations  which  neglect  to  pay  taxes  assessed 
and  certified  to  the  state  treasurer  by  the  commissioner  shall  .pay 
interest  at  the  rate  of  six  per  cent  per  annum  from  the  time  when 
such  taxes  were  payable  until  paid,  if  such  payment  is  made  before 
the  commencement  of  proceedings  for  the  recovery  thereof,  and 
twelve  per  cent  if  made  after  the  commencement  thereof. 

Application  to  the  Board  of  Appeal 

Section  71.  (As  amended  by  St.  1921,  chapter  123.)  Except  as 
otherwise  provided,  any  party  aggrieved  by  any  decision  of  the  com- 
missioner upon  any  matter  arising  under  this  chapter  from  which  an 
appeal  is  given,  may  apply  to  the  board  of  appeal  from  decisions  of 
the  commissioner  within  ten  days  after  notice  of  his  decision.  Said 
board  shall  hear  and  decide  the  subject  matter  of  such  appeal,  and 
give  notice  of  its  decision  to  the  commissioner  and  the  appellant ;  and 
its  decision  shall  be  final  and  conclusive  as  to  questions  of  fact,  al- 
though payments  have  been  made  as  required  by  the  decision  appealed 
from.  Any  overpayment  of  tax  determined  by  decision  of  said  board 
of  appeal  shall  be  reimbursed  by  the  commonwealth.  Taxes,  excises, 
costs  or  expenses  of  any  kind  assessed  upon  any  corporation,  com- 
pany or  association,  except  a  municipal  corporation,  which  are  un- 
paid and  are  uncollectible,  may  be  abated  by  the  board  of  appeal  on 
the  recommendation  of  the  attorney  general  and  commissioner  at  any 
time  after  the  expiration  of  five  years  from  the  date  when  the  same 
became  payable. 

The  provision  for  application  to  the  board  of  appeal1  cor- 
responds in  a  measure  to  the  statutory  proceedings  for  the  abate- 
ment of  local  property  taxes  by  appeal  to  the  county  commis- 
sioners, and  is  the  exclusive  remedy  in  case  of  the  overvaluation 
of  the  franchise,  the  corporate  excess  or  the  income  of  a  cor- 
poration.2 

While  the  findings  of  the  board  of  appeal  are  final  on  ques- 
tions of  fact,  its  decisions  on  questions  of  law  may  be  reviewed 
on  petition  for  writ  of  certiorari.     If  the  applicant  desires  to 

1  See  as  to  the  Board  of  Appeal  G.  L.  c.  6,  §21,  supra,  page  139. 

2  Boston  Manufacturing  Co.  v.  Commonwealth,  144  Mass.  598  (1887);  At- 
torney-General v.  East  Boston  Co.,  222  Mass.  450  (1916). 


594  Taxation  in  Massachusetts 

[G.  L.  c.  63,  §§  71-75  inc. 

have  the  record  in  proper  form  for  raising  the  desired  questions 
of  law  in  certiorari  proceedings,  he  should  file  carefully  prepared 
requests  for  rulings  of  law,  and  the  board  may  be  compelled  to 
certify  how  it  disposed  of  such  requests. 

Collection  of  Corporation  Taxes 

Section  72.  When  a  tax  or  excise  of  any  kind  remains  due  to  or 
is  claimed  by  the  commonwealth  from  a  corporation,  company  or 
association,  whether  existing  by  authority  of  the  commonwealth  or 
otherwise,  except  a  municipal  corporation,  for  ten  days  after  notice 
given  through  the  mail  by  the  state  treasurer  to  its  treasurer  or  other 
financial  agent  that  such  tax  or  excise  is  due  and  unpaid,  the  state 
treasurer  may,  in  addition  to  other  modes  of  relief,  issue  his  war- 
rant, directed  to  the  sheriff  or  his  deputies  of  the  county  where  such 
corporation,  company  or  association  has  its  place  of  business,  com- 
manding the  collection  of  such  tax  or  excise.  Such  warrant  may  be 
substantially  in  the  form  of  and  served  in  the  same  manner  as  those 
issued  by  the  assessors  of  towns.  Such  warrant  shall  not  run  against 
the  body  of  any  person,  nor  shall  any  property  of  such  delinquent 
corporation,  company  or  association  be  exempt  from  seizure  and  sale 
thereon.  The  officer  having  such  warrant  shall  collect  such  tax  or 
excise,  and  interest  upon  the  same  at  the  rate  of  twelve  per  cent  per 
annum  from  the  time  when  such  tax  or  excise  became  due,  and  may 
collect  and  receive  for  his  fees  the  sum  which  an  officer  would  be 
entitled  by  law  to  receive  upon  an  execution  for  a  like  amount.  He 
shall  also  collect  one  dollar  for  the  warrant,  which  he  shall  pay  to  the 
state  treasurer. 

Section  73.  If  a  corporation,  company  or  association  fails  to  pay 
a  tax  levied  under  this  chapter,  except  the  excise  imposed  by  section 
sixty-two,  the  treasurer  may  recover  the  same  in  contract  in  the  name 
of  the  commonwealth. 

Section  74.  The  lessee  of  the  works,  structures,  real  estate  or 
machinery  of  any  corporation,  company  or  association  taxed  under 
this  chapter  shall  also  be  liable  for  the  payment  of  the  tax,  and  upon 
such  payment  may,  in  the  absence  of  an  agreement  to  the  contrary, 
retain  it  out  of  the  rent  of  the  property,  or  recover  it  in  an  action 
against  the  lessor. 

Section  75.  In  addition  to  the  methods  provided  by  sections 
seventy-two  and  seventy-three,  taxes  under  this  chapter,  except  sec- 


Taxation  of  Corporations  595 

G.  L.  c.  63,  §§  75,  76] 

tion  sixty-two,  may  be  collected  by  an  information  brought  in  the 
supreme  judicial  court  by  the  attorney  general  at  the  relation  of  the 
state  treasurer.  The  court  may  issue  an  injunction  upon  such  in- 
formation, restraining  the  further  prosecution  of  the  business  of  the 
company,  association  or  corporation  until  such  taxes,  with  interest 
and  costs  thereon,  have  been  paid ;  but  no  telegraph  company  accept- 
ing the  provisions  of  section  fifty-two  hundred  and  sixty-three  of  the 
Revised  Statutes  of  the  United  States  shall  be  enjoined  from  con- 
structing, maintaining  or  operating  a  telegraph  line  over  and  along 
any  of  the  military  or  post  roads  of  the  United  States  within  this 
commonwealth. 

Section  76.  The  sale  or  transfer,  otherwise  than  in  the  ordinary 
course  of  trade  and  in  the  regular  and  usual  prosecution  of  the  cor- 
poration's business,  of  any  part  or  the  whole  of  the  assets  of  a 
domestic  business  corporation  shall  be  fraudulent  and  void  as  against 
the  commonwealth,  unless  such  corporation  shall,  at  least  five  days 
before  the  sale  or  transfer,  notify  the  commissioner  of  the  proposed 
sale  or  transfer  and  of  the  price,  terms  and  conditions  thereof,  and 
of  the  character  and  location  of  said  assets.  Whenever  such  a  cor- 
poration shall  make  such  a  sale  or  transfer,  the  tax  imposed  by  this 
chapter  shall  become  due  and  payable  at  the  time  when  the  commis- 
sioner is  so  notified,  or,  if  he  is  not  so  notified,  at  the  time  when  he 
should  have  been  notified. 

This  section  shall  not  apply  to  sales  by  receivers,  assignees  under 
a  voluntary  assignment  for  the  benefit  of  creditors,  trustees  in  bank- 
ruptcy, or  public  officers  acting  under  judicial  process. 

It  will  be  observed  that  the  statutes  provide  three  methods 
for  enforcing  payment  of  taxes  assessed  upon  corporations  and 
payable  to  the  commonwealth.  (1)  A  warrant  authorizing 
the  seizure  and  sale  of  the  property  of  the  delinquent  corpora- 
tion, provided  by  section  seventy-two  and  constituting  in  effect 
a  warrant  of  distress.  (2)  An  action  of  contract  by  the  com- 
monwealth against  the  delinquent  corporations,  provided  by 
section  seventy-three.  (3)  An  information  by  the  attorney 
general  at  the  relation  of  the  state  treasurer  to  restrain  the  cor- 
poration from  carrying  on  business  until  the  tax  is  paid,  author- 
ized by  section  seventy-five.  The  third  is  the  method  now 
commonly  employed. 

The  action  of  contract  must  be  brought  in  the  name  of  the 


596  Taxation  in  Massachusetts 

[G.  L.  c.  63,  §§  76,  77 

commonwealth.  The  court  has  no  jurisdiction  to  entertain  an 
action  brought  in  the  name  of  the  state  treasurer.1  The  infor- 
mation against  a  corporation,  on  the  other  hand,  should  be 
brought  in  the  name  of  the  attorney-general. 

In  an  information  under  the  statute,  and  doubtless  also  in 
an  action  of  contract  by  the  commonwealth  to  recover  the  amount 
of  a  tax,  it  is  not  open  to  the  defendant  to  show  that  the  tax  is 
excessive  in  amount  by  reason  of  overvaluation,  or  that  it  is  il- 
legal in  part.  The  only  recourse  of  the  corporation  in  such 
cases  is  to  pursue  the  remedies  provided  by  sections  seventy-one 
and  seventy-seven  respectively,  and  it  cannot  collaterally  attack 
the  validity  of  an  assessment  which  is  in  part  at  least  lawfully 
assessed,  in  an  action  brought  to  collect  it.2  But  if  the  assess- 
ment is  wholly  void,  the  corporation  may  set  up  its  invalidity  in 
an  action  brought  to  enforce  payment.3 

An  information  cannot  be  maintained  to  restrain  a  corpora- 
tion engaged  solely  in  interstate  commerce  from  carrying  on  bus- 
iness within  the  commonwealth  until  an  excise  tax  lawfully 
imposed  upon  it  is  paid.4  An  information  may  however  be  main- 
tained under  this  section  against  a  foreign  corporation  engaged 
in  interstate  commerce  having  a  usual  place  of  business  in  this 
commonwealth,  provided  that  it  has  a  place  of  business  used  for 
other  purposes,  but  the  injunction  issued  will  restrain  it  only 
from  doing  business  other  than  interstate  commerce  until  the 
tax  is  paid.5 

Remedy  of  Corporation  in  Case  of  Taxes  Illegally  Assessed 

Section  77.  Any  corporation,  company  or  association  aggrieved 
by  the  exaction  of  any  tax  or  excise  or  of  any  part  thereof  may, 
within  six  months  after  the  payment  of  the  same,  whether  such  pay- 
ment be  after  or  before  the  issue  of  the  warrant  mentioned  in  section 
seventy-two,  apply  by  petition  to  the  supreme  judicial  court,  setting 
forth  the  amount  of  the  tax  or  excise  and  costs  thereon  so  paid,  the 
general  legal  grounds  and  the  specific  grounds  in  fact,  if  any,  upon 
which  it  is  claimed  such  tax  or  excise  should  not  have  been  exacted. 
Said  petition  shall  be  the  exclusive  remedy  and  shall  be  entered  and 

'Oliver  v.  Colonial  Gold  Co.,  11  Allen  283   (1865). 

*  Attorney-General  v.  East  Boston  Co.,  222  Mass.  450   (1916). 
3  Compare  G.  L.  c.  60,  §35,  svpra,  page  342. 

*  Western  Union  Tel.  Co.  v.  Massachusetts,  125  U.  S.  530  (1887). 
•Attorney-General  v.  Electric  Storage  Battery  Co.,  188  Mass.  239   (1905). 


Taxation  op  Corporations  597 

G.  L.  c.  63,  §§  77,  78] 

heard  in  Suffolk  county.  A  copy  of  the  same  shall  be  served  upon 
the  state  treasurer  and  upon  the  attorney  general.  The  proceedings 
upon  such  petition  shall  conform,  as  nearly  as  may  be,  to  proceedings 
in  equity,  and  an  abatement  shall  be  made  of  only  such  portion  of  the 
tax  or  excise  as  was  assessed  without  authority  of  law. 

Section  78.  If  the  court,  upon  a  hearing  or  trial,  adjudges  that 
said  tax  or  excise,  and  the  costs  thereon,  have  been  illegally  exacted, 
a  copy  of  the  judgment  or  decree  shall  be  transmitted  by  the  clerk 
of  the  court  to  the  state  auditor,  who  shall  thereupon  audit  and  cer- 
tify the  amount  adjudged  to  have  been  illegally  exacted,  with  interest, 
and  costs  to  be  taxed  by  the  clerk  of  the  court  in  the  same  manner  as 
other  claims  against  the  commonwealth,  and  the  state  treasurer  shall 
pay  the  same,  without  any  further  act  or  resolve  making  appropria- 
tion therefor.  So  much  thereof  as  has  been  paid  by  the  common- 
wealth to  any  town  may  be  deducted  from  and  set  off  against  any 
sum  afterwards  payable  to  such  town. 

The  distinction  between  the  remedy  provided  by  section  sev- 
enty-seven and  the  remedy  by  application  to  the  board  of  ap- 
peal under  section  seventy-one  is  important.  The  application  to 
the  board  of  appeal  is  the  exclusive  remedy  for  overvaluation. 
The  remedy  by  petition  to  the  supreme  judicial  court  was  not 
intended  to  enable  a  corporation  to  bring  before  the  court  the  in- 
quiry whether  there  had  been  an  overvaluation  of  that  which 
was  taxable,  but  whether  there  had  been  a  wrongful  assessment 
of  a  tax  or  excise  upon  that  which  was  not  the  proper  subject 
of  taxation.1 

While  the  distinction  between  a  tax  illegal  in  part  and  a  tax 
excessive  because  of  an  erroneous  construction  of  the  law  by 
the  commissioner  may  be  obvious  in  principle,  in  practice  cases 
frequently  arise  in  which  it  is  difficult  for  the  corporation  to  de- 
termine the  proper  remedy.  In  such  cases  the  safest  course  is 
to  institute  proceedings  under  both  sections,  and  then  if  the 
remedy  first  brought  to  trial  is  held  to  be  the  improper  one,  the 
corporation  may  fall  back  upon  the  other. 

If  the  petition  is  not  filed  within  six  months  after  the  payment 
of  the  tax,  the  court  has  no  jurisdiction  to  entertain  the  proceed- 
ing.2   Not  only  must  the  petitioner  file  his  petition  within  the 

1  Boston  Mfg.  Co.  v.  Commonwealth,  144  Mass.  598   (1887). 
*  Lever  Bros.  Co.  v.  Commonwealth,  232  Mass.  22  (1919). 


598  Taxation  in  Massachusetts 

[G.  L.  c.  63,  §  78 
statutory  period,  but  he  must  take  out  a  subpoena  within  a 
reasonable  time  thereafter  and  make  a  reasonable  effort  to  serve 
it.3  A  general  appearance  on  behalf  of  the  commonwealth  will 
not  give  the  court  jurisdiction  if  these  requirements  are  not 
complied  with.4 

It  is  to  be  noted  that  the  remedy  by  petition  may  be  invoked 
whether  the  collection  of  the  tax  is  enforced  by  warrant  or  it 
is  paid  without  the  issuance  of  process.  It  may  be  employed 
when  the  tax  is  only  partially  invalid.  The  remedy  by  petition 
can  be  invoked  only  in  the  case  of  a  tax ;  a  filing  fee  wrongfully 
collected  cannot  be  recovered  back  in  a  proceeding  under  section 
seventy-seven.5  Either  party  may  appeal  from  an  adverse  de- 
cision of  a  single  justice  to  the  full  court;  if  the  decision  is  in 
favor  of  the  petitioner  the  appeal  should  be  in  the  name  of  the 
commonwealth  and  not  of  the  attorney  general.6 

The  remedy  by  petition  is  the  exclusive  remedy,  at  least  so 
far  as  the  state  courts  are  concerned,7  and  prior  to  1919  there 
was  no  provision  authorizing  the  repayment  of  an  admittedly 
illegal  tax  unless  proceedings  had  been  brought  under  the  statute 
within  the  specified  period.  If  the  validity  of  the  tax  upon  a 
numerous  class  of  corporations  was  dependent  upon  the  deter- 
mination of  a  doubtful  question  of  law,  the  corporations  affected, 
even  with  the  consent  of  the  state  authorities,  could  not  pay 
their  respective  taxes  under  protest  and  await  the  result  of  a 
test  case,  but  to  protect  their  rights  were  required  to  go  to  the 
expense  of  instituting  a  separate  proceeding  in  court  in  the  case 
of  each  corporation.  By  legislation  enacted  in  1919  it  was  pro- 
vided that  the  state  should  have  authority  to  repay  a  tax  il- 
legally exacted  to  corporations  which  filed  an  application  with 
the  commissioner  before  the  time  for  instituting  proceedings  in 
court  expired,  and  under  this  statute  corporations  may  protect 
their  rights  by  filing  an  application  and  awaiting  the  determina- 
tion of  the  question  involved  in  proceedings  brought  by  other 
parties.8 

3  International  Paper  Co.  v.  Commonwealth,  232  Mass.  7  (1919)  ;  Locomobile 
Co.  v.  Commonwealth,  232  Mass.  16  (1919). 

4  Locomobile  Co.  v.  Commonwealth,  232  Mass.  16  (1919). 

5  Lever  Bros.  Co.  v.  Commonwealth,  232  Mass,  22  (1919). 

•Boston  &  Albany  R.  R.  Co.  v.  Commonwealth,  157  Mass.  69   (1892). 
7  Attorney-General  v.  East  Boston  Co.,  222-  Mass.  450   (1916). 
8G.  L.  c.  58,  §27,  supra,  page  181. 


Taxation  of  Corporations  599 

G.  L.  c.  63,  §§  78-80] 

A  domestic  corporation  which  has  paid  an  illegal  tax  and  al- 
lowed the  time  for  instituting  proceedings  under  section  seventy- 
seven  to  elapse  without  action  on  its  part  has  lost  its  right  to  re- 
cover back  the  tax  in  any  form  of  action ;  a  common  law  action 
will  not  lie  against  the  state  treasurer,  because  the  statute  ex- 
pressly provides  that  the  remedy  provided  by  section  seventy- 
seven  is  exclusive.  A  foreign  corporation  however  may,  it  has 
been  held,  maintain  an  action  at  common  law  in  the  district 
court  of  the  United  States  against  the  state  treasurer  who  was  in 
office  when  the  tax  was  collected  to  recover  back  the  amount  of 
an  illegal  tax,  the  jurisdiction  of  the  federal  court  being  grounded 
on  diversity  of  citizenship.9 

Penalties  and  Their  Enforcement 

Section  79.  Any  corporation,  company  or  association,  liable  to 
taxation  under  section  fifty-eight,  neglecting  to  make  the  returns  re- 
quired by  this  chapter,  or  refusing  or  neglecting,  when  required,  to 
submit  to  the  examinations  provided  for  therein,  shall  forfeit  such 
sum  not  greater  than  two  per  cent  upon  the  par  value  of  its  capital 
stock  as  the  court  may  deem  just  and  equitable. 

Section  80.  Penalties  and  forfeitures  imposed  by  this  chapter 
may  be  collected  by  an  action  of  contract  under  section  seventy-three 
or  by  an  information  under  section  seventy-five.  An  injunction  issued 
upon  such  an  information  may  contain  a  provision  continuing  it  in 
force  until  the  returns  and  certificates  required  by  this  chapter  have 
been  filed. 


•International  Paper  Co.  v.  Burrill,  260  Fed.  Rep.  664   (1919) 


CHAPTER    64 

TAXATION    OF    STOCK    TRANSFERS 

Before  the  enactment  of  the  statute  imposing  a  tax  on  the 
transfer  of  stock,  the  constitutionality  of  such  a  tax  was  submitted 
to  the  supreme  judicial  court.  All  of  the  justices  agreed  that 
a  tax  on  the  transfer  of  stock  of  corporations  was  a  valid  excise ; 
but  with  respect  to  taxing  the  transfer  of  shares  in  voluntary- 
associations  there  was  considerable  difference  of  opinion.  Three 
of  the  justices  were  of  opinion  that  an  excise  could  not  be  im- 
posed on  the  exercise  of  a  natural  right  and  that  the  transfer  of 
shares  in  voluntary  associations  was  a  natural  right.  Three  of 
the  justices  were  of  opinion  that  the  exercise  of  a  natural  right 
could  be  taxed;  and  the  seventh  was  of  opinion  that  a  natural 
right  could  not  be  taxed,  but  that  the  transfer  of  shares  in  a 
voluntary  association  was  not  a  natural  right.  The  majority 
thus  held  that  a  tax  on  the  transfer  of  shares  in  voluntary  asso- 
ciations could  be  taxed;1  and  in  1914  the  stock  transfer  act  was 
enacted,  and  with  some  minor  amendments  it  has  remained  in 
force  since  that  time. 

By  the  statute  a  tax  is  levied  upon  all  sales  and  agreements 
to  sell,  and  upon  all  deliveries  or  transfers  of  shares  or  certificates 
of  stock  of  all  corporations,  whether  domestic  or  foreign,  and  of 
all  voluntary  associations  existing  under  a  written  instrument 
or  declaration  of  trust  where  the  beneficial  interests  are  divided 
into  transferable  certificates  or  shares,  at  the  rate  of  two  cents  on 
each  $100  of  the  face  value  or  fraction  thereof.  When  the  certifi- 
cate has  no  face  or  par  value,  the  tax  is  levied  at  the  rate  of  two 
cents  for  each  share.  When  the  certificate  has  a  face  value  of  a 
certain  amount,  and  also  bears  a  statement  that  a  lesser  amount 
has  been  paid  in,  the  tax  is  based  on  the  face  value,  not  on  the 
amount  paid  in. 

The  law  applies  to  the  stock  of  foreign  and  of  domestic  cor- 
porations, and  of  voluntary  associations,  and  to  residents  and 

Opinion  of  the  Justices,  196  Mass.  603  (1908). 

600 


Taxation  op  Stock  Transfers  601 

G.  L.  c.  64] 

non-residents,  liability  to  taxation  being  grounded  on  the  fact 
that  the  sale,  or  some  essential  step  therein,  has  taken  place 
within  this  state.  While  the  law  has  no  extraterritorial  opera- 
tion, nevertheless,  where  it  appears  that  the  transfer  of  the 
stock  on  the  corporate  books  within  this  state  is  essential  to 
render  the  sale  effectual,  the  transaction  is  subject  to  a  tax,  al- 
though in  all  other  respects  made  without  the  state.2 

This  statute  does  not  apply  to  the  original  issue  of  stock; 
but  all  sales  or  transfers  made  subsequent  thereto  are  tax- 
able. 

It  is  not  necessary  to  render  it  taxable  that  the  transaction 
involves  a  sale.  By  the  statute  a  tax  is  imposed  upon  all  trans- 
fers of  shares  or  certificates  of  stock,  whether  or  not  the  transac- 
tion entitles  the  holder  in  any  manner  to  the  benefit  of  such  stock, 
or  whether  the  transfer  is  made  to  secure  the  future  payment  of 
money,  or  future  transfer  of  stock,  or  possession  is  given  for  any 
other  purpose,  except  those  purposes  expressly  provided  for  in 
the  statute. 

The  mere  surrender  of  a  certificate  of  stock  for  reissue  in 
smaller  denominations  is  not  taxable ;  but  if  the  stock  is  reissued 
in  part  to  a  third  party  the  transaction  is  taxable  to  the 
extent  of  the  transfer  to  the  third  party. 

The  surrender  of  the  certificates  of  stock  of  a  deceased  per- 
son for  issuance  in  the  name  of  his  executor  or  administrator  is 
not  taxable;  but  all  transfers  made  by  the  latter  to  trustees, 
legatees,  distributees  and  others  are  taxable.  A  transfer  made 
by  an  executor  to  an  administrator  with  the  will  annexed  of 
the  same  estate,  or  by  a  trustee  to  a  succeeding  trustee  under 
the  same  trust  is  not  taxable ;  but  a  transfer  to  and  from  voting 
trustees  is  taxable,  as  is  also  the  transfer  of  voting  trust  certifi- 
cates. 

An  agreement  evidencing  the  deposit  of  stock  certificates  as 
collateral  security  for  money  loaned  thereon,  which  stock  cer- 
tificates are  not  actually  sold,  is  not  taxable,  nor  is  the  deposit 
of  the  securities  taxable. 

A  transfer  from  a  customer  to  a  broker,  or  from  a  broker  to 
a  customer,  when  made  solely  for  the  purpose  of  making  a  pur- 

2  For  the  constitutional  questions  arising  out  of  the  levy  of  a  stamp  tax 
under  such  circumstances  see  Hatch  v.  Reardon,  204  U.  S.  152   (1907). 


602  Taxation  in  Massachusetts 

[G.  L.  c.  64 

chase  or  sale,  is  not  taxable,  provided  the  broker  files  with  the 
transfer  agent  a  certificate  setting  forth  the  facts. 

The  statute  applies  to  shares  in  co-operative  banks  when  such 
shares  are  actually  sold.  It  does  not  apply  when  such  shares 
are  cancelled  or  withdrawn,  nor  to  the  original  issue  of  such 
shares. 

It  is  the  duty  of  the  seller  or  transferor  to  pay  the  required 
tax  by  procuring,  affixing  and  cancelling  stamps  indicating  the 
amount  of  the  tax.  When  the  evidence  of  transfer  is  shown 
only  by  the  books  of  the  company,  the  stamps  should  be  placed 
upon  such  books;  where  the  change  of  ownership  is  by  transfer 
of  a  certificate  the  stamp  should  be  placed  upon  the  certificate; 
in  case  of  an  agreement  to  sell,  or  where  the  sale  is  effected  by 
the  delivery  of  the  certificate  assigned  in  blank,  there  should  be 
made  and  delivered  by  the  seller  to  the  buyer  a  bill  or  memor- 
andum of  such  sale,  to  which  the  stamps  should  be  affixed.  This 
bill  or  memorandum  should  be  'affixed  to  the  certificate  when 
presented  for  transfer. 

Every  such  bill  or  memorandum  of  sale,  or  agreement  to 
sell  or  sales  ticket  must  show: — 

(a)  The  date  of  the  transaction. 

(b)  The  name  of  the  seller. 

(c)  The  stock  to  which  it  relates,  the  number  of 'shares  and 
the  amount  of  the  sale;  and  all  such  bills  of  sale  or  memoranda 
should  be  preserved  for  at  least  two  years  from  their  respective 
dates. 

In  every  case  where  a  stamp  is  used  to  denote  the  payment  of 
the  tax,  the  person  using  or  affixing  the  stamp  must  cancel  it 
by  writing  or  stamping  thereon  the  initials  of  his  name,  and 
the  date  upon  which  the  stamp  is  attached.  He  should  also 
cut  or  perforate  the  stamp  in  a  substantial  manner,  so  that  it 
cannot  be  used  again. 

Every  corporation  or  association,  the  transfer  of  whose  shares 
is  subject  to  the  tax,  is  required  to  keep  or  cause  to  be  kept  at 
some  accessible  place  within  the  commonwealth  a  stock  certifi- 
cate book  or  transfer  ledger  or  register,  in  which  should  be  re- 
corded, in  separate  columns,  the  date  of  making  every  transfer  of 
stock,  the  name  of  the  stock  and  the  number  of  shares  thereof, 
the  name  of  the  party  surrendering  the  certificates,  the  name  of 
the  party  to  whom  certificates  are  issued  in  exchange  therefor, 


Taxation  of  Stock  Transfers  603 

G.  L.  c.  64] 

and  evidence  of  the  payment  of  the  tax,  which  evidence  may  be 

furnished  either: 

(a)  By  attaching  to  the  stock  certificate  surrendered  for 
transfer  the  stamps  required  for  such  transfer,  or 

(b)  If  the  stamps  are  not  attached  to  the  certificate,  but  are 
attached  to  the  bill  or  memorandum  of  sale  effecting  or  evidenc- 
ing the  transfer  of  such  certificate,  by  attaching  to  the  certificate 
the  said  bill  or  memorandum  of  sale  with  stamps  attached. 

The  corporation  or  association  is  required  to  retain  and  keep 
all  surrendered  or  cancelled  shares  or  certificates  of  stock  and 
all  bills  or  memoranda  relating  to  the  sale  or  transfer  of  stock 
for  at  least  two  years  after  the  date  of  the  delivery  thereof,  and 
to  keep  for  at  least  two  years  after  the  date  of  the  last  entry 
thereon,  its  stock  certificate  book  or  transfer  ledger. 

Every  broker  is  required  to  keep  a  true  book  of  account, 
in  which  there  should  be  recorded: 

(a)  The  date  of  making  every  sale,  agreement  to  sell,  de- 
livery or  transfer  of  shares  or  certificates  of  stock. 

(b)  The  name  of  the  stock  and  the  number  of  the  shares. 

(c)  The  face  value  thereof. 

(d)  The  name  of  the  seller  and  the  name  of  the  buyer. 

(e)  The  face  value  of  the  stamps  affixed  to  the  bill  or  mem- 
orandum or  certificate. 

These  books  should  be  preserved  for  at  least  two  years,  and 
are  subject  to  examination  by  the  commissioner  or  his  repre- 
sentatives at  any  time  between  10  o'clock  in  the  forenoon  and 
3  o'clock  in  the  afternoon,  except  on  Saturdays,  Sundays  and 
legal  holidays. 

Collection  of  the  tax  may  be  enforced  by  an  action  brought  in 
the  name  of  the  commonwealth,  or  by  an  information  in  equity 
by  the  attorney  general.  It  is  also  provided  that  no  transfer 
of  stock  made  after  the  statute  went  into  effect  on  which  a  tax 
should  have  been  but  was  not  paid  shall  be  made  the  basis  of 
any  legal  proceeding  in  any  court  in  the  commonwealth.  Severe 
penalties  are  also  provided  for  the  consummation  of  a  sale  or 
transfer  without  payment  of  the  tax,  for  the  transfer  of  stock 
by  a  transfer  agent  if  the  tax  has  not  been  paid,  for  the  illegal 
re-use  of  stamps,  for  failing  to  keep  the  books  required  by  the 
statute,  or  for  refusing  to  allow  the  commissioner  to  examine 
the  books. 


604  Taxation  in  Massachusetts 

[G.  L.  c.  64 

In  case  stamps  have  been  erroneously  affixed,  a  claim  may 

be  made  with  the  commissioner  for  the  refund  of  the  amount  of 

the  tax  so  paid,  within  ninety  days  after  the  erroneous  affixing, 

and  if  he  rejects  the  claim,  appeal  may  be  made  to  the  board  of 

appeal. 


CHAPTER    65 

TAXATION    OF    LEGACIES    AND    SUCCESSIONS 

History  of  the  Inheritance  Tax 

The  inheritance  or  succession  tax,  though  first  introduced  into 
Massachusetts  legislation  in  comparatively  recent  times,  is  by 
no  means  a  modern  discovery  as  a  device  for  raising  revenue 
for  public  use.  An  inheritance  tax  in  much  its  present  form 
was  an  established  feature  of  the  Roman  system  of  taxation  and 
exists  to-day  in  almost  all  the  countries  whose  jurisprudence  is 
based  on  the  Roman  law.  Many  incidents  of  the  feudal  system 
furnished  in  substance  the  equivalent  of  a  succession  tax.  In 
England  the  probate  duty  was  introduced  in  1694  and  the  tax  on 
legacies  in  1780.  The  system  has  been  steadily  developed  since 
that  time,  and  the  "death  duties"  as  they  are  called  furnish  a 
substantial  portion  of  the  revenues  of  the  British  government. 
Inheritance  taxes  were  imposed  by  the  United  States  during 
the  period  between  17971  and  1802  and  again  during  and  after 
the  civil  war2  and  the  wars  with  Spain  and  with  Germany.* 
The  first  state  to  adopt  the  inheritance  tax  was  Pennsylvania 
in  1826.  The  expansion  of  this  system  of  taxation  was  slow 
until  1885  when  it  was  established  in  New  York  and  since  that 
time  it  has  rapidly  extended  to  almost  every  state  in  the  Union. 
The  inheritance  tax  first  appeared  in  Massachusetts  in  1891, * 
but  it  was  then  confined  to  inheritance  by  will  or  intestate 

'U.  S.  St.  July  6,  1797,  c.  11. 

JU.  S.  St.  July  1,  1862,  c.  119,  §§  111,  112.  This  act  was  amended  two 
years  later,  and  repealed  in  1870.  The  revenue  act  of  1894  contained  a  provision 
for  the  taxation  of  inheritances,  but  the  entire  act  was  held  unconstitutional  on 
account  of  its  income  tax  provisions.  Pollock  v.  Farmers'  Loan  &  Trust  Co.,  157 
U.  S.  429   (1895)  ;  158  U.  S.  601   (1895). 

*  The  Spanish  War  inheritance  tax  was  imposed  by  U.  S.  St.  June  13,  1898, 
c.  448,  §§29,  30.  An  inheritance  tax  was  included  in  the  Revenue  Act  of  1909 
as  it  passed  the  House  of  Representatives ;  but  a  tax  on  the  income  of  corpor- 
ations was  substituted  in  the  Senate.  Flint  v.  Stone  Tracy  Co.,  220  U.  S.  107 
( 1911 ) .  An  inheritance  tax  was  imposed  in  1916,  before  the  United  States  entered 
the  World  War,  U.  S.  St.  1916,  c.  463,  §261,  as  amended  by  U.  S.  St.  1917,  c. 
63,  §900;  c.  159,  §300.     See  also  War  Revenue  Act  of  1918,  c.  400. 

♦  St.  1891,  c.  425. 

605 


606  Taxation  in  Massachusetts 

[G.  L.  c.  65 
succession  to  strangers  or  collateral  relatives.  In  1907  the  direct 
inheritance  law  was  enacted5  imposing  a  tax  on  all  inheritances 
above  a  certain  value,  which  value  is  larger  in  the  case  of  direct 
inheritance ;  but  a  bequest  or  inheritance  of  sufficient  size  even  to 
the  testator's  own  children  is  reached  by  the  tax.  In  1916  the 
rate  of  taxation  was  modified,  and,  in  general,  increased. 

The  inheritance  tax  is  favored  both  by  economists  and  by 
those  charged  with  the  duty  of  raising  revenue  for  the  public 
needs.  It  is  considered  the  least  burdensome  of  all  taxes,  and, 
until  the  enactment  of  the  income  tax  act  in  19166,  furnished  the 
only  practicable  means  of  reaching  the  great  mass  of  personal 
property  consisting  of  stocks,  bonds,  notes  and  other  easily  con- 
cealed objects  which  readily  escaped  the  annual  assessment  but 
which  when  the  owner  died  passed  through  the  probate  court  and 
were  then  exposed  to  official  examination.  While  the  amount 
raised  by  the  inheritance  tax  varies  from  year  to  year,  according 
to  the  number  of  wealthy  residents  who  have  died  during  the 
year,  in  a  state  of  substantial  size  a  considerable  revenue  can  be 
counted  on  every  year,  and  taken  as  a  whole,  the  tax  has  given 
general  satisfaction  when  it  has  been  imposed  with  fairness. 

Constitutionality  of  Inheritance  Taxes 

Inheritance  taxes  are  of  two  classes,  namely,  estate  taxes 
and  legacy  or  succession  taxes.1  An  estate  tax  is  imposed  upon 
the  net  estate  of  the  decedent  passing  at  his  death,  and  does 
not  concern  itself  with  the  legacies  or  distributive  shares  into 
which  the  estate  is  divided  or  the  relationship  to  the  decedent  of 
those  who  receive  the  property.  It  is  a  tax  on  the  trans- 
mission and  not  on  the  receipt  of  property.  The  present  federal 
tax  is  an  estate  tax.2 

A  legacy  or  succession  tax  is  a  tax  upon  the  privilege  of  tak- 
ing property  by  will  or  by  inheritance  or  by  succession  in  any 
other  form  upon  the  death  of  the  owner,  and  is  imposed  upon 
each  legacy  or  distributive  share  of  the  estate  as  it  is  received. 
It  is  a  tax  on  the  receipt  and  not  on  the  transmission  of  property. 
The  present  Massachusetts  tax  is  a  legacy  and  succession  tax. 

8  St.  1907,  c.  563. 
•St.  1916,  c.  268. 

'Knowlton  v.  Moore,  178  U.  S.  41,  49  (1900)  ;  Minot  v.  Winthrop,  162  Mass. 
113,  124  (1894). 

'Plunkett  v.  Old  Colony  Trust  Co.,  233  Mass.  471    (1919). 


Taxation  op  Legacies  and  Successions  607 

G.  L.  c.  65] 

The  inheritance  tax  was  not  established  in  Massachusetts 
or  elsewhere  in  the  United  States  without  a  contest  over  its 
constitutionality.  It  has  been  sustained  here  and  elsewhere, 
not  as  a  direct  tax  but  as  an  excise  on  the  privilege  of  taking 
or  transmitting  property  by  will  or  inheritance  or  by  succession 
in  any  other  form  upon  the  death  of  the  owner — a  privilege 
which  if  not  wholly  dependent  for  its  existence  upon  the  will  of 
the  legislature  is  at  least  so  far  subject  to  regulation  as  to  be 
unquestionably  a  proper  subject  of  excise.3 

The  power  of  the  state  is  not  limited  to  the  taxation  of  the 
privilege  of  receiving  or  transmitting  property  by  will  or  by 
the  laws  regulating  intestate  succession  but  extends  to  all  forms 
of  conveyances  made  gratuitously  and  intended  to  take  effect 
in  possession  or  enjoyment  after  the  death  of  the  grantor  or 
donor.4  The  passing  into  possession  and  enjoyment  of  property 
may  be  made  subject  to  taxation,  even  though  the  instrument 
under  which  the  property  passes  was  executed  and  effective 
before  the  statute  imposing  the  excise  was  enacted.5  A  suc- 
cession tax  may  even  be  constitutionally  made  applicable  to  the 
personal  estate  of  a  person  who  has  died  before  it  was  enacted, 
although  the  right  to  receive  the  distributive  shares  has  already 
vested,  provided  the  estate  has  not  passed  out  of  the  control  of 
the  probate  court  into  the  hands  of  the  distributees.6 

As  an  inheritance  tax  is  an  excise  it  follows  as  a  necessary 
consequence  that  in  determining  the  value  of  the  privilege  taxed 
and  consequently  the  amount  of  the  excise  it  is  proper  to  take 

3Knowlton  v.  Moore,  178  U.  S.  41  (1900);  Minot  v.  Winthrop,  1G2  Mass. 
113  (1894). 

*  The  state  may  tax  the  succession  of  a  husband  or  wife  to  community  prop- 
erty. Moffit  v.  Kelly,  218  U.  S.  400  ( 1910) .  The  state  may  tax  the  transfer  of 
property  by  deed  intended  to  take  effect  in  possession  or  enjoyment  after  the 
death  of  the  grantor.  Keeney  v.  New  York,  222  U.  S.  525  (1912).  The  United 
States  may  levy  a  tax  on  the  succession  of  property  within  the  several  states. 
Knowlton  v.  Moore,  178  U.  S.  41   (1900). 

5  The  state  may  tax  the  execution  of  a  power  though  the  power  was  created 
prior  to  the  enactment  of  the  tax.  Crocker  v.  Shaw,  174  Mass.  266  (1899)  ; 
Attorney  General  v.  Stone,  209  Mass.  186  (1911)  ;  Burnham  v.  Treasurer  &  Re- 
ceiver General,  212  Mass.  165  (1912)  ;  Chanler  v.  Kelsey,  205  U.  S.  466  (1907). 
The  state  may  tax  the  vesting  in  possession  of  trust  property  by  failure  to  exer- 
cise a  power  of  appointment  created  prior  to  the  establishment  of  the  tax,  Minot 
v.  Treasurer  &  Receiver  General,  207  Mass.  588  (1911)  ;  and  a  legacy  in  com- 
pliance with  a  contract  may  be  taxed,  although  the  contract  was  made  before  the 
enactment  of  the  tax.  Clarke  v.  Treasurer  &  Receiver  General,  226  Mass.  301 
(1917). 

•Cahen  v.  Brewster,  203  U.  S.  543  (1906). 


608  Taxation  in  Massachusetts 

[G.  L.  c.  65,  §  1 

into  consideration  property  which  could  not  be  constitutionally 
subjected  to  direct  taxation;7  and  that  the  tax  need  not  be  pro- 
portional but  may  be  graduated  in  any  manner  which  the  court 
cannot  clearly  see  to  be  arbitrary  and  unreasonable.8 


Subjects  and  Rates  of  Taxation 

Section  1.  All  property  within  the  jurisdiction  of  the  common- 
wealth, corporeal  or  incorporeal,  and  any  interest  therein,  whether 
belonging  to  inhabitants  of  the  commonwealth  or  not,  which  shall 
pass  by  will,  or  by  laws  regulating  intestate  succession,  or  by  deed, 
grant  or  gift,  except  in  cases  of  a  bona  fide  purchase  for  full  consider- 
ation in  money  or  money's  worth,  made  in  contemplation  of  the  death 
of  the  grantor  or  donor  or  made  or  intended  to  take  effect  in  posses- 
sion or  enjoyment  after  his  death,  and  any  beneficial  interest  therein 
which  shall  arise  or  accrue  by  survivorship  in  any  form  of  joint  own- 
ership in  which  the  decedent  joint  owner  contributed  during  his  life 
any  part  of  the  property  held  in  such  joint  ownership  or  of  the  pur- 
chase price  thereof,  to  any  person,  absolutely  or  in  trust,  except  to  or 
for  the  use  of  charitable,  educational  or  religious  societies  or  institu- 
tions, the  property  of  which  is  by  the  laws  of  the  commonwealth  ex- 
empt from  taxation,  or  for  or  upon  trust  for  any  charitable  pur- 
poses to  be  carried  out  within  the  commonwealth,  or  to  or  for  the  use 
of  the  commonwealth  or  any  town  therein  for  public  purposes,  shall 
be  subject  to  a  tax  at  the  percentage  rates  fixed  by  the  following  table : 

Provided,  however,  that  no  property  or  interest  therein,  which 
shall  pass  or  accrue  to  or  for  the  use  of  a  person  in  Class  A,  except  a 
grandchild  of  the  deceased,  unless  its  value  exceeds  ten  thousand  dol- 
lars, and  no  other  property  or  interest  therein,  unless  its  value  ex- 
ceeds one  thousand  dollars,  shall  be  subject  to  the  tax  imposed  by  this 
chapter,  and  no  tax  shall  be  exacted  upon  any  property  or  interest 

T  Thus  a  state  may  tax  a  bequest  to  the  United  States.  United  States  v. 
Perkins,  163  U.  S.  625  (1896).  A  state  may  tax  a  bequest  of  United  States  bonds. 
Plummer  v.  Coler,  178  U.  S.  115  (1900)  ;  Callahan  v.  Woodbridge,  171  Mass.  595 
(1898).  A  state  may  tax  a  bequest  of  property  which  it  has  agreed  should  be 
exempt  from  taxation  without  thereby  impairing  the  obligation  of  contracts.  Orr 
v.  Gilman,  183  U.  S.  278  (1901).  The  United  States  may  tax  a  bequest  to  a  city 
incorporated  by  a  state.    Snyder  v.  Bettman,  190  U.  S.  249   (1903). 

"Minot  v.  Winthrop,  162  Mass.  113  (1894)  ;  Magoun  v.  Illinois  Trust  &  Sav- 
ings Bank,  170  U.  S.  283  (1898);  Billings  v.  Illinois,  188  U.  S.  97  (1903); 
Campbell  v.  California,  200  U.  S.  87  (1906)  ;  Keeney  v.  New  York,  222  U.  S.  525 
(1912)  ;  Watson  v.  New  York,  254  U.  S.  122  (1920). 


Taxation  of  Legacies  and  Successions  609 

G.L.  c.  65,  §1] 

so  passing  or  accruing  which  shall  reduce  the  value  of  such  property 

or  interest  below  said  amounts. 


Rate  Per  Centum  op  Tax  on  Value  of  Property  or  Interest 


Relationship 

op  Beneficiary  to 

Deceased 


Class  A. 
Husband,  wife,  father,  mother,  child,  adopt- 
ed child,  adoptive  parent,  grandchild.   .   . 

Class  B. 
Lineal  ancestor,  except  father  or  mother; 
lineal  descendant,  except  child  or  grand- 
child; lineal  descendant  of  adopted  child; 
lineal  ancestor  of  adoptive  parent;  wife  or 
widow  of  a  eon ;  husband  of  a  daughter ,  .   . 

Class  C. 
Brother,   sister,   half    brother,    half    sister, 
nephew,  niece,  step-child  or  step-parent, 


All  others, 


Class  D. 


On 
Value 

not 
exceeding 
$10,000. 


1% 

3% 
5% 


On 

Excess 

above 

$10,000, 

not 
exceeding 
$25,000. 


2% 

5% 
6% 


On 

Excess 

above 

$25,000, 

not 
exceeding 
$50,000. 


2% 

4% 
7%' 


On 

Excess 

above 

$50,000, 

not 
exceeding 
$250,000. 


4% 

5% 

8% 
8% 


On  Excess 

above 
$250,000, 

not 

exceeding 

$1,000,000. 


5% 

«% 

9% 
9% 


On  Excess 

above 
$1,000,000. 


8% 

7% 

10% 

10% 


The  original  inheritance  tax  statute  of  1891  imposed  a  tax 
of  five  per  cent  for  the  use  of  the  commonwealth  upon  all  prop- 
erty passing  by  will  or  descent  or  conveyance  taking  effect  after 
the  death  of  the  grantor  "except  to  or  for  the  use  of  the  father, 
mother,  husband,  wife,  lineal  descendant,  brother,  sister,  adopted 
child,  the  lineal  descendant  of  any  adopted  child,  the  wife  or 
widow  of  a  son  or  the  husband  of  a  daughter  of  a  decedent" 
and  except  certain  charitable  bequests  to  be  considered  later. 
It  was  further  provided  that  no  estate  should  be  liable  to  this 
tax  unless  it  exceeded  ten  thousand  dollars  in  value.  In  1895 
it  was  provided  that  no  bequest  should  be  subject  to  the  tax 
unless  it  exceeded  five  hundred  dollars ;  but  it  was  held  that  this 
exemption  did  not  apply  to  the  estates  of  persons  dying  before 
its  enactment.1    In  1896  the  same  exemption  was  extended  to 


lHowe  v.  Howe,  179  Mass.  546  (1901).  This  provision  with  others  was  re- 
enacted  by  St.  1906,  c.  436,  §1,  and  section  2  of  the  latter  statute  provided 
that  section  1  should  apply  to  all  cases  in  which  the  tax  remained  unpaid  at  its 
passage.  In  1909  and  1910  the  commonwealth  collected  a  number  of  inheritance 
taxes  which  had  fallen  due  during  the  early  years  of  the  law  and  had  been  then 
overlooked.   It  would  seem  that  so  far  as  these  legacies  were  less  than  $500  they 


610  Taxation  in  Massachusetts 

[G.  L.  c.  65,  §  1 

distributive  shares  of  the  estates  of  persons  dying  intestate. 
In  1901  the  exemption  of  estates  not  exceeding  ten  thousand 
dollars  was  stricken  out;  but  it  was  provided  that  the  statute 
containing  this  provision  should  not  apply  to  the  estates  of  per- 
sons dying  before  its  enactment.2  In  1907  the  statute  was 
enacted  in  much  its  present  form  as  regards  to  degrees  of  re- 
lationship taxed,  except  that  in  1909  the  adoptive  parent  or 
his  lineal  ancestor  was  put  in  the  same  class  as  the  adopted  child 
and  his  descendant. 

The  statute  of  1907  made  a  radical  change  so  that  the  tax 
no  longer  applied  to  collateral  inheritances  only  but  included  all, 
direct  as  well  as  collateral.  The  statute  contained  a  general 
revision  and  re-enactment  of  all  the  provisions  relating  to  the 
inheritance  tax,  and  two  years  later  with  such  further  amend- 
ments as  had  intervened  was  re-enacted  again  as  Part  IV  of  the 
general  codification  of  the  statutes  relating  to  taxation.  The 
statute  of  1907  was  not  retroactive  and  applied  only  to  the  es- 
tates of  persons  who  died  after  September  1,  1907.  The  estates 
of  persons  who  died  between  July  10,  1891,  and  September  1, 
1907,  were  left  subject  to  taxation  in  accordance  with  the  pro- 
visions of  the  earlier  statutes.3 

Under  the  1907  statute  the  succession  of  property  in  the 
manner  provided  is  taxable  in.  every  case  except  (1)  the  suc- 
cession by  the  husband,  wife,  father,  mother  or  child  of  decedent 
of  $10,000  or  less;  (2)  the  succession  by  anyone  else  of  $1,000 
or  less;  (3)  bequests  of  any  size  for  certain  charitable  purposes 
discussed  elsewhere.4 

In  1912  a  general  increase  in  the  rates  of  taxation  upon  the 
larger  legacies  or  shares  was  established,  but  the  successions 
or  shares  which   were  left  untaxed  were  not  modified.     The 


were  exempt  under  the  provisions  of  St.  1906,  c.  436,  but  the  office  of  the  at- 
torney general  ruled  otherwise  and  not  enough  was  involved  to  justify  litigation 
by  the  individuals  taxed. 

2  It  was  held  in  Callahan  v.  Woodbridge,  171  Mass.  595  (1898),  that  in  de- 
ciding whether  an  estate  was  exempt  on  account  of  its  size,  debts  were  to  be  de- 
ducted but  not  expenses  of  administration ;  but  in  determining  the  amount  of  the 
tax,  only  the  amount  which  actually  passes  to  the  successor  is  considered.  This 
decision  is  now  of  importance  only  in  relation  to  the  estates  of  persons  who  died 
between  July  10,  1891,  when  the  original  inheritance  tax  was  first  put  in  force, 
and  April  16,  1901,  when  the  limitation  of  $10,000  was  repealed. 

s  Hill  v.  Treasurer  &  Receiver  General,  227  Mass.  331   (1917). 

*  Infra,  page  619. 


Taxation  op  Legacies  and  Successions  611 

G.L.c.  65,  §1] 

statute  was  not  retroactive,  and  applied  to  the  .estates  of  per- 
sons dying  after  May  29,  1912.5 

In  1916  a  statute  was  enacted  making  important  changes  in 
the  inheritance  tax  act.  Under  this  statute  the  rate  of  taxation 
was  modified  and,  in  general,  increased,  although  the  successions 
which  were  left  untaxed  under  the  1907  statute  were  not  affected ; 

RATES  PRIOR  TO  MAY  29,  1912 

Rate  of  Succession  Tax  under  Acts  of  1907,  Chapter  563,  as  codified 
and  amended  by  acts  of  1909,  chapter  490,  part  iv,  and  acts  of 
1909,  Chapters  268  and  527.  In  Effect  upon  the  Estates  of  Per- 
sons DYING   ON   OR  AFTER  SEPT.    1,    1907,   AND   PRIOR  TO   MAY  29,    1912. 


VALUE  OF  SHARE. 

Over 

Over 

Over 

Over 

BENEFICIARY. 

$1,000 

$10,000 

$25,000 

$50,000 

I1.0G9 

but  not 

but  not 

but  not 

but  not 

Over 

or  Under. 

over 

over 

over 

over 

$100,000. 

$10,000. 

$25,000. 

$50,000. 

$100,000. 

1.  Charitable,    educational    or    re- 

ligious   societies    or    institutions 

exempt     from      local      taxation; 

trusts  for  charitable  purposes  to 

be  carried  out  within  Massachu- 

setts; city  or  town  in  Massachu- 

setts for  public  purposes           .     . 

No  tax 

No  tax 

No  tax 

No  tax 

No  tax 

No  tax 

2.  Class    A        HuBband,     wife,    fa- 

* 

ther,     mother,      child,     adopted 

child,  adoptive  parent    . 

No  tax 

No  tax 

1  per  cent 

1  per  cent 

1$  per  cent 

2  per  cent 

3.  Class    A.      Lineal    ancestor,    ex- 

cept   father    or    mother;    lineal 

descendant,    except    child;    lineal 

descendant     of     adopted     child, 

lineal      ancestor   _  of      adoptive 

parent:  wife  or  widow  of  a  son; 

husband  of  a  daughter 

No  tax 

1  per  cent 

1  per  cent 

1  per  cent 

1J  per  cent 

2  per  cent 

4   Class   B.      Brother,    sister,    half 

brother,     half     sister,     nephew. 

niece  

No  tax 

3  per  cent 

3  per  cent 

4  per  cent 

4  per  cent 

5  per  cent 

5   All       others      (including       step 

No  tax 

5  per  cent 

5  per  cent 

5  per  cent 

5  per  cent 

5  per  cent 

No  tax  is  payable  on  account  of  the  interest  of  any  beneficiary  who  does  not  take  in  excess  of  $1,000. 

No  tax  is  payable  on  account  of  property  passing  to  the  husband,  wife,  father,  mother,  child  or  adopted  child  of 
deceased  unless  his  or  her  total  beneficial  interest  exceeds  $10,000. 

If  the  value  of  all  property  passing  to  any  one  of  such  beneficiaries  exceeds  $10,000,  the  tax  attaches  to  the  whole 
amount. 

In  no  event  is  the  tax  to  reduce  the  share  below  the  excepted  amount. 


but  instead  of  leaving  the  rate  of  taxation  to  which  each  entire 
legacy  was  subject  dependent  upon  the  amount  of  the  legacy 
as  under  the  earlier  statutes,  it  was  provided  by  the  1916  statute 
that  so  much  of  each  legacy  or  share  as  fell  below  one  of  the 
designated  limits  was  to  be  taxed  at  the  rate  imposed  upon  lega- 
cies and  shares  below  such  limit  and  only  the  excess  was  to  be 
taxed  at  the  higher  rate.6 

"St.  1912,  c.  678,  §§1,  2. 
•St.  1916,  c.  268,  §1. 


612  Taxation  in  Massachusetts 

[G.  L.  c.  65,  §  l 

The  1916  statute  was  not  retroactive,  and  applied  to  persons 
dying  after  May  25,  1916.  The  earlier  statutes  remained  in  force 
with  respect  to  persons  dying  before  that  date.  There  has  been 
no  change  in  the  rate  of  taxation  since  1916,  except  in  temporary 
acts  intended  to  raise  funds  for  particular  emergencies.7     The 

RATES  SINCE  MAY  29,  1912,  AND  PRIOR  TO  MAY  26,  1916. 

Rate  of  Succession  Tax  under  Acts  of  1912,  Chapter  678.  In 
Effect  upon  the  Estates  of  Persons  dying  on  or  after  May  29, 
1912,  and  prior  to  May  26,  1916. 


VALUE  OF  SHARE. 

Over 

Over 

Over 

Over 

Over 

beneficiary. 

$1,000 

81,000 

$10,000 

$25,000 

$50,000 

$250,000 

or 

but  not 

but  not 

but  not 

but  not 

but  not 

Over 

Under. 

over 

over 

over 

over 

over 

$1,000,000. 

$10,000. 

$25,000. 

$50,000. 

$250,000. 

$1,000,000. 

1.  Charitable,       educational      or 

religious    societies    or    institu- 

tions exempt  from   local  tax- 

ation;    trusts     for     charitable 

purposes    to    be    carried    out 

within      Massachusetts;      city 

or  town  in   Massachusetts  for 

public  purposes   .       .       . 

No  tax 

No  tax 

No  tax 

No  tax 

No  tax 

No  tax 

No  tax 

2.  Class  A.     Husband,  wife,  fa- 

ther,   mother,    child,    adopted 

child,  adoptive  parent 

No  tax 

No  tax 

1  per  cent 

1  per  cent 

2  percent 

3  per  cent 

4  per  cent 

3.  Class  A.     Lineal  ancestor,  ex- 

cept father    or   mother;  lineal 

descendant,    except   child;   lin- 

eal    descendant     of     adopted 

child;      lineal      ancestor      of 

adoptive      parent;      wife      or 

widow  of  a  son;  husband  of 

a  daughter 

No  tax 

1  per  cent 

1  per  cent 

1  per  cent 

2  per  cent 

3  per  cent 

4  per  cent 

4.  Class  B.     Brother,  sister,  half 

brother,    half   sister,    nephew, 

niece     

No  tax 

2  per  cent 

3  per  cent 

5  per  cent 

6  per  cent 

7  per  cent 

8  per  cent 

5.  All     others     (including     step- 

children)       

No  tax 

5  per  cent 

5  per  cent 

5  per  cent 

6  per  cent 

7  per  cent 

8  per  cent 

No  tax  is  payable  on  account  of  the  interest  of  any  beneficiary  who  does  not  take  in  excess  of  $1,000. 

No  tax  is  payable  on  account  of  property  passing  to  the  husband,  wife,  father,  mother,  child  or  adopted  child 
of  deceased  unless  his  or  her  total  beneficial  interest  exceeds  $10,000. 

If  the  value  of  all  property  passing  to  any  one  of  such  beneficiaries  exceeds  $10,000,  the  tax  attaches  to  the  whole 
amount. 

In  no  event  is  the  tax  to  reduce  the  share  below  the  excepted  amount 


tables  accompanying  the  text  will  show  the  rates  of  taxation 
applicable  to  the  estates  of  persons  dying  within  the  periods 
designated  therein. 

7  By  St.  1918,  c.  191,  it  was  provided  that  all  property  of  persons  dying  be- 
tween May  3,  1918  and  May  3,  1919  should  be  subject  to  an  additional  tax  of 
25%  of  the  tax  imposed  by  the  existing  law.  By  St.  1919,  c.  342,  §4  (the  War 
Bonus  Tax  act)  the  additional  tax  was  extended  to  the  estates  of  persons  dying 
between  May  3,  1919  and  July  22,  1920.  By  St.  1920,  c.  441,  the  additional  tax 
was  extended  to  the  estates  of  persons  dying  between  July  22  and  December  1, 
1920,  being  imposed  for  the  general  purposes  of  the  commonwealth. 


G.  L.  c.  65,  §1] 


Taxation  of  Legacies  and  Successions 


RATES  SINCE  MAT  26,  1916 


613 


Rate  of  Succession  Tax  under  Acts  of  1916,  Chapter  268.    In  Effect 
upon  the  Estates  of  Persons  dying  on  or  after  May  26,  1916. 


VALUE  OF  SHARE. 

Over 

Over 

Over 

Over 

Over 

$1,000 

$1,000 

$10,000 

$25,000 

$50,000 

$250,000 

BENEFICIARY. 

or 

but  not 

but  not 

but  not 

but  not 

but  not 

Over 

Under. 

over 

over 

over 

over 

over 

$1,000,000. 

$10,000. 

$25,000. 

$50,000. 

$250,000. 

$1,000,000. 

1.  Charitable,  educational  or  reli- 

gious     societies      or      institu- 

tions  exempt   from    local    tax- 

ation;    trusts     for     charitable 

purposes    to     be    carried    out 

within      Massachusetts;      city 

or  town  in   Massachusetts  for 

public  purposes    .... 

No  tax 

No  tax 

No  tax 

No  tax 

No  tax 

No  tax 

No  tax 

2.  Class  A. — Husband,  wife,    fa- 

ther,   mother,    child,    adopted 

child,  adoptive  parent 

No  tax 

No  tax 

1% 

2% 

4% 

5% 

6% 

on  excess 

on  excess 

on  excess 

on  excess 

3.  Grandchild 

No  tax 

1% 

1% 

2% 

4% 

5% 

6% 

on  excess 

on  excess 

on  excess 

on  excess 

4.  Class  B. — Lineal  ancestor,  ex- 

cept  father    or   mother;   lineal 

descendant     except     child     or 

grandchild;       lineal       descend- 

ant   of    adopted    child;    lineal 

ancestor    of    adoptive    parent; 

wife  or  widow  of  a  son;  hus- 

band of  a  daughter 

No  tax 

1% 

2% 

4% 

5% 

6% 

7% 

on  excess 

on  excess 

on  excess 

on  excess 

on  excess 

5.  Class  C. — Brother,  sister,  half- 

brother,     half-sister,     nephew, 

niece,    step-child    or    step-par- 

ent .              .       .     •  . 

No  tax 

3% 

5% 

7% 

8% 

9% 

10% 

on  excess 

on  excess 

on  excess 

on  excess 

on  excess 

6.  Class  D— All  others  .       .       . 

No  tax 

5% 

6% 

7% 

8% 

9% 

10% 

on  excess 

on  excess 

on  excess 

on  excess 

on  excess 

No  tax  is  payable  on  account  of  the  interest  of  any  beneficiary  who  does  not  take  in  excess  of  $1,000. 

No  tax  is  payable  on  account  of  property  passing  to  the  husband,  wife,  father,  mother,  child  or  adopted  child  of 
deceased  unless  his  or  her  total  beneficial  interest  exceeds  $10,000. 

If  the  value  of  all  property  passing  to  any  one  of  such  beneficiaries  exceeds  $10,000,  the  tax  attaches  to  the  whole 
amount. 

In  no  event  is  the  tax  to  reduce  the  share  below  the  excepted  amount. 

An  additional  tax  of  25%  of  the  amount  indicated  in  the 
preceding  table  is  assessed  on  the  estates  of  persons  dying  be- 
tween May  3,  1918  and  December  2,  1920. 


Transactions  Which  Are  Subject  to  the  Tax 

The  original  statute  was. made  applicable  to  property  "which 
shall  pass  by  will,  or  by  the  laws  of  the  commonwealth  regu- 
lating intestate  succession  or  by  deed,  grant,  sale  or  gift,  made 
or  intended  to  take  effect  in  possession  or  enjoyment  after  the 
death  of  the  grantor."  The  changes  which  have  been  made  in 
this  phraseology  consist  of  striking  out  the  words  "of  the  com- 


614  Taxation  in  Massachusetts 

[G.  L.  c.  65,  §  l 

monwealth"  in  the  Revised  Laws,  and  the  striking  out  of  the 
word  "sale"  in  the  direct  inheritance  tax  law  of  1907  and  the 
insertion  at  the  same  time  of  the  exception  of  "cases  of  a  bona 
fide  purchase  for  full  consideration  in  money  or  money's  worth," 
and  the  inclusion  in  1920  of  grants  or  gifts  made  in  contempla- 
tion of  the  death  of  the  grantor  or  donor  among  the  transac- 
tions subject  to  the  tax.1 

With  respect  to  property  passing  by  will,  the  liability  to  tax- 
ation is  based  upon  the  transmission  of  the  property  at  the 
time  of  the  death  of  the  testator,  even  if  he  creates  a  series  of 
future  interests  which  do  not  take  effect  in  possession  or  enjoy- 
ment until  long  afterward;2  but  when  a  will  creates  a  vested 
interest  in  the  principal  of  a  trust  fund  and  the  person  entitled 
to  such  interest  dies,  the  passing  of  the  fund  to  his  heirs  and 
next  of  kin  is  subject  to  an  additional  tax.3 

The  collection  of  a  debt  against  the  estate  of  a  deceased  per- 
son through  the  ordinary  channels  is  of  course  not  subject  to  the 
inheritance  tax;4  but  the  exception  in  the  statute  in  favor  of 
transactions  for  full  consideration  does  not  apply  to  wills,  and  a 
legacy  given  in  pursuance  of  a  contract  and  for  full  considera- 
tion is  taxable.5 

When  the  provisions  of  a  will  are  the  subject  of  controversy 
and  a  compromise  is  effected  with  the  approval  of  the  probate 
court  which  results  in  the  distribution  of  the  estate  in  a  man- 
ner different  from  that  prescribed  by  the  will,  the  tax  never- 
theless should  be  assessed  on  the  property  as  disposed  of  by  the 
will  and  legacies  are  taxable  for  the  full  amount  even  although 
they  are  reduced  by  the  compromise  below  the  established  limit 
of  taxability.6 

It  is  generally  considered  that  dower,  being  a  common  law 
right  continued  and  preserved  by  the  statutes,  is  not  subject 

iSt.  1920,  c.  548.  As  to  the  construction  of  this  phrase,  see  G.  L.  c.  65,  §3, 
infra,  page  623. 

2  As  to  the  taxation  of  future  interests,  see  G.  L.  c.  65,  §14,  infra,  page  640. 

•Hall  v.  Beebe,  223  Mass.  306   (1916). 

4  Hill  v.  Treasurer  &  Receiver  General,  227  Mass.  331   (1917). 

r- Clarke  v.  Treasurer  &  Receiver  General,  226  Mass.  301  (1917).  See  also 
Hill  v.  Treasurer  &  Receiver  General,  227  Mass.  331  (1917)  in  which  it  was  held 
that  although  money  paid  by  virtue  of  an  ante-nuptial  agreement  as  a  debt 
against  the  husband's  estate  is  not  taxable,  if  the  husband  provides  in  his  will 
that  the  wife  may  take  the  specified  sum  in  securities  instead  of  in  cash  and  she 
avails  herself  of  this  right,  this  is  a  legacy  in  payment  of  a  debt  and  is  taxable. 

"Baxter  v.  Treasurer  &  Receiver  General,  209  Mass.  459  (1911). 


Taxation  of  Legacies  and  Successions  615 

G.L.  c.  65,  §1] 

to  the  tax,  for  the  reason  that  the  change  of  the  right  of  dower 
upon  the  death  of  the  husband  from  an  inchoate  to  a  consum- 
mated right  is  not  a  passing  of  the  property  "by  the  laws  regu- 
lating intestate  succession."  The  right  of  curtesy  on  the  other 
hand,  being  in  its  present  form  wholly  a  creature  of  statute,  may 
with  more  propriety  be  held  to  be  subject  to  the  tax.7 

With  respect  to  grants  or  gifts,  it  has  been  held  that  a  deed 
of  settlement,  revocable  or  irrevocable,  whether  made  before 
or  after  the  enactment  of  the  statute,  under  which  the  principal 
is  not  to  vest  in  ownership  or  possession  until  the  grantor's 
death  and  which  does  not  so  vest  until  the  statute  is  in  force 
is  subject  to  the  tax.8  As  far  as  the  exception  of  a  bona  fide 
purchase  for  full  consideration  is  concerned,  the  consideration 
must  actually  equal  in  value  the  property  transferred,  and  it 
is  not  enough  that  it  is  substantial  or  that  the  parties  consider 
it  sufficient.9 

The  taking  out  of  an  insurance  policy  payable  to  a  designated 
beneficiary  and  the  payment  of  the  premiums  by  the  insured  is 
not  a  gift  intended  to  take  effect  in  possession  or  enjoyment  after 
the  death  of  the  donor,  and  the  amount  paid  to  the  beneficiary 
on  the  death  of  the  insured  is  not  subject  to  the  tax.10 

In  the  original  statute  there  was  no  provision  for  the  taxa- 
tion of  the  acquisition  of  a  complete  interest  in  property  by 
right  of  survivorship.  In  1915  however  it  was  held  that  the 
acquisition  of  a  complete  title  in  real  estate  by  the  surviving 
tenant  by  the  entirety  was  not  subject  to  the  succession  tax, 
because  it  was  not  acquired  by  intestate  succession  but  by  reason 
of  the  nature  of  the  estate.11  The  same  decision  was  reached 
in  the  case  of  the  exercise  of  the  right  of  survivorship  in  real 
and  personal  property  held  in  joint  tenancy.12     In  the  follow- 

T  Even,  however,  assuming  that  curtesy  is  not  subject  to  the  tax,  if  a  sur- 
viving husband  does  not  file  his  election  to  take  curtesy  and  accepts  the  more 
favorable  provisions  of  his  wife's  will,  all  the  property  which  comes  to  him  from 
his  wife's  estate  is  subject  to  the  tax,  and  not  merely  the  excess  over  what  he 
was  entitled  to  by  virtue  of  his  marital  rights.  Dana  v.  Dana,  226  Mass.  297 
(1917). 

"Crocker  v.  Shaw,  174  Mass.  266  (1899)  ;  New  England  Trust  Co.  v.  Abbott, 
205  Mass.  279  (1910)  ;  State  St.  Trust  Co.  v.  Treasurer  &  Receiver  General,  209 
Mass.  373  (1911).  As  to  gifts  in  contemplation  of  death,  see  G.  L.  c.  65,  §3, 
infra,  page  623. 

•State  St.  Trust  Co.  v.  Treasurer  &  Receiver  General,  209  Mass.  373  (1911). 

10  Tyler  v.  Treasurer  &  Receiver  General,  226  Mass.  306   (1917). 

"Palmer  v.  Treasurer  &  Receiver  General,  222  Mass.  263   (1915). 

12  Attorney-General  v.  Clark,  222  Mass.  291   (1915). 


616  Taxation  in  Massachusetts 

[G.  L.  c.  65,  §  1 

ing  year  however  the  tax  was  specifically  extended  to  cover  the 

passing  of  any  beneficial  interest  in  property  by  survivorship 

in  any  form  of  joint  ownership  in  which  the  decedent  joint 

owner  contributed  during  his  life  any  part  of  the  property  held 

in  such  joint  ownership  or  the  purchase  price  thereof.13    It  is 

however  open  to  some  doubt  whether  the  statute  is  broad  enough 

even  now  to  cover  the  case  of  tenancy  by  the  entirety. 

What  Property  is  Subject  to  the  Tax 

Under  the  original  statute  of  1891,  which  provided  merely 
that  all  property  within  the  jurisdiction  of  the  commonwealth 
passing  in  the  specified  manner  should  be  subject  to  the  tax,  it 
was  held  that  the  legislature  had  undertaken  to.  impose  a  tax 
limited  only  by  its  constitutional  powers,1  and  consequently 
that  all  personal  property  of  decedents  who  were  residents  of 
this  commonwealth  of  whatever  nature  and  wherever  kept  was 
subject  to  the  tax,  because  the  succession  of  personal  property 
takes  place  primarily  by  virtue  of  the  laws  of  the  owner's  domi- 
cile.2 On  the  other  hand,  the  personal  property  of  a  non-resi- 
dent decedent  kept  within  this  commonwealth  was  held  to  be 
taxable  here,  because  such  property  is  within  the  state  and 
subject  to  its  jurisdiction.3  The  property  it  was  said  has  the 
protection  of  our  laws  and  our  laws  are  invoked  for  its  adminis- 
tration.4 It  was  also  held  that  shares  of  Massachusetts  corpora- 
tions and  of  national  banks  situated  within  this  commonwealth 
owned  by  non-resident  decedents  and  kept  outside  the  state 

13  St.  1916,  c.  268,  §1. 

1  Kinney  v.  Treasurer  &  Receiver  General,  207  Mass.  368  (1911).  For  the 
limits  of  legislative  power  in  such  cases,  see  supra,  Part  I,  §47. 

2  Real  estate  of  a  resident  decedent  located  in  another  state  is  not  subject 
to  the  tax;  and  this  principle  would  exonerate  from  the  tax  a  beneficial  interest 
in  land  located  in  another  state  belonging  to  a  resident  decedent,  although  the 
interest  was  assignable  without  deed,  when  the  holders  of  the  beneficial  interests 
were  not  associated  together  in  any  way;  but  shares  in  an  unincorporated  asso- 
ciation owning  real  estate  in  other  states  and  belonging  to  a  resident  decedent 
are  taxable.  Dana  v.  Treasurer  &  Receiver  General,  227  Mass.  562  (1917).  Per- 
sonal property  of  a  resident  decedent,  of  whatever  character,  is  taxable.  Thus 
bonds  of  foreign  corporations,  though  kept  in  another  state  and  secured  by 
mortgage  of  real  estate  in  another  state,  stocks  of  foreign  corporations  and  cash 
on  deposit  in  another  state  are  all  taxable.    Frothingham  v.  Shaw,  175  Mass.  59 

(1899).  Such  a  tax  cannot  be  evaded  by  organizing  a  foreign  corporation  to  hold 
the  assets  of  a  resident  decedent.  Gardiner  v.  Treasurer  &  Receiver  General,  225 
Mass.  355  (1916). 

•Callahan  v.  Woodbridge,  171  Mass.  595  (1898). 

•Callahan  v.  Woodbridge,  171  Mass.  595  (1898). 


Taxation  of  Legacies  and  Successions  617 

G.L.  c.  65,  §1] 

were  subject  to  the  tax  because  such  corporations  having  an 
abiding  place  here  akin  to  the  domicile  of  a  natural  person  are 
subject  to  the  jurisdiction  of  the  commonwealth  and  the  stock- 
holders are  the  proprietors  of  the  corporation.5  Although  the 
situs  of  a  debt  is  the  domicile  of  the  creditor  and  not  that  of  the 
debtor  and  accordingly  the  debts  and  obligations  of  residents 
and  of  Massachusetts  corporations  owed  to  non-resident  dece- 
dents were  not  subject  to  the  general  property  tax,  when  the 
debt  or  obligation  was  evidenced  by  a  tangible  piece  of  paper  as 
in  the  case  of  a  bond,  the  state  in  which  the  paper  was  kept  had 
jurisdiction  thereof,  and  bonds  either  of  Massachusetts  or  of 
foreign  corporations  owned  by  a  non-resident  decedent  but  kept 
within  this  commonwealth  were  held  to  be  subject  to  the  tax;8 
and  when  the  debt  or  obligation  could  not  be  transferred  to  the 
person  who  succeeded  thereto  upon  the  death  of  the  decedent, 
or  enforced  by  him,  without  resorting  to  the  jurisdiction  of 
this  commonwealth  it  was  held  subject  to  the  tax  without  regard 
to  the  place  where  the  paper  which  evidenced  the  debt  was  kept.7 
The  assessment  of  the  tax  in  such  a  broad  and  sweeping  man- 
ner produced  considerable  revenue  for  the  treasury  of  the  com- 
monwealth, but  before  many  years  had  elapsed  almost  every 
state  in  the  union  had  enacted  an  inheritance  tax  law  and  pro- 
ceeded to  enforce  it  in  the  same  drastic  manner.     As  a  result 

6Greves  v.  Shaw,  173  Mass.  205  (1899)  ;  Gardiner  v.  Treasurer  &  Receiver 
General,  225  Mass.  355  (1916).  It  was  held  in  the  former  case  that  the  fact  that 
the  executor  was  able  to  get  the  shares  transferred  to  the  legatees  before  proving 
the  will  here  did  not  exempt  him  from  paying  the  tax.  Shares  in  real  estate 
trusts  when  the  trustees  lived  and  managed  the  property  in  this  state  and  the 
property  is  situated  here  are  taxable,  although  the  decedent  was  a  non-resident 
and  the  shares  were  kept  outside  the  state.  Peabody  v.  Treasurer  &  Receiver 
General,  215  Mass.  129  (1913).  See  also  Priestley  v.  Treasurer  &  Receiver  Gen- 
eral, 230  Mass.  452  (1918). 

•Callahan  v.  Woodbridge,  171  Mass.  595  (1898).  This  principle  does  not 
extend  so  far  as  to  justify  the  taxation  of  stock  in  a  foreign  corporation  belong- 
ing to  a  non-resident  decedent  merely  because  the  stock  certificates  were  kept  in. 
this  commonwealth.  Clark  v.  Treasurer  &  Receiver  General,  218  Mass.  292  ( 1914) . 

TThus  in  Kinney  v.  Treasurer  &  Receiver  General,  207  Mass.  368  (1911)  it 
was  held  that  notes  belonging  to  a  non-resident  decedent  and  kept  outside  the 
state  but  secured  by  mortgage  upon  real  estate  within  the  state  were  subject  to 
the  tax.  In  Bliss  v.  Bliss,  221  Mass.  201  (1915)  it  was  held  that  registered 
bonds  of  this  commonwealth  belonging  to  a  non-resident  decedent  and  kept  out- 
side the  state  were  taxable,  because  they  could  not  be  transferred  without  re- 
sorting to  the  jurisdiction  of  this  commonwealth;  but  that  notes  of  a  partner- 
ship belonging  to  a  non-resident  and  kept  outside  the  state  were  not  taxable, 
although  the  principal  place  of  business  and  the  domicile  of  one  of  the  partners 
was  in  this  commonwealth,  if  another  of  the  partners  lived  elsewhere,  as  the 
notes  could  be  enforced  without  resorting  to  the  courts  of  this  commonwealth. 


618  Taxation  in  Massachusetts 

[G.  L.  c.  65,  §  1 

the  estates  of  decedents  whose  funds  were  invested  in  several 
different  states  were  often  made  subject  to  two,  three  or  even 
more  inheritance  taxes  with  respect  to  the  same  property.  For 
reasons  stated  elsewhere  such  a  result  violated  no  constitutional 
rights,8  but  it  began  to  be  felt  that  it  was  unjust  as  well  as  un- 
wise, and  concerted  efforts  were  made  throughout  the  country 
to  mitigate  the  burden  of  duplicate  inheritance  taxation. 

In  1907  a  step  was  made  in  this  direction  in  Massachusetts 
which  involved  the  exemption  of  property  of  a  non-resident  de- 
cedent where  a  like  exemption  was  made  by  the  laws  of  his 
domicile  in  favor  of  citizens  of  this  commonwealth;9  and  in  1912 
the  state  renounced  all  inheritance  taxes  upon  the  estates  of 
non-resident  decedents  except  upon  their  interests  in  real  estate 
within  this  commonwealth.10  In  1907  also  the  commonwealth 
renounced  the  taxation  of  the  property  of  resident  decedents  not 
situated  within  the  commonwealth,  if  legally  subject  to  a  like 
tax  elsewhere.11 

Although  a  number  of  other  states  adopted  a  similar  policy, 
it  was  not  universally  accepted,  and  the  states  which  adhered 
to  the  principle  of  subjecting  to  the  inheritance  tax  everything 
which  lay  within  their  constitutional  power  to  reach  profited  at 
the  expense  of  the  states  which  had  adopted  a  more  equitable 
policy.  Massachusetts  finally  gave  up  the  attempt  to  bring 
about  by  its  example  the  levying  of  inheritance  taxes  along  lines 
of  interstate  comity,  and  in  1916  repealed  the  statute  exempting 
property  of  resident  decedents  elsewhere  taxed,12  and  in  1920 

8  Supra,  Part  I,  §33. 

9  St.  1907,  c.  563,  §3.    See  G.  L.  c.  65,  §5,  infra,  page  626. 

10  St.  1912,  c.  678.  Under  this  statute  it  was  held  that  the  real  estate  of  a 
non-resident  decedent  which  was  taxable  included  a  mortgage  of  real  estate  with- 
in the  commonwealth,  Hawkridge  v.  Treasurer  &  Receiver  General,  223  Mass.  134 
(1916),  and  shares  in  a  partnership  association  owning  real  estate  in  this  com- 
monwealth ;  but  not  shares  in  an  association  constituting  a  trust  as  distinguished 
from  a  partnership.  Priestley  v.  Treasurer  &  Receiver  General,  230  Mass.  452 
(1918).  Even  under  the  former  statute  it  was  held  that  when  real  estate  of  a 
non-resident  decedent  situated  in  Massachusetts  was  subject  to  a  mortgage  the 
tax  should  be  merely  on  the  equity  of  redemption  although  the  decedent  left  suf- 
ficient personal  property  in  his  own  state  to  pay  off  the  mortgage.  McCurdy  v. 
McCurdy,  197  Mass.  248   (1908). 

11  St.  1907,  c.  563,  §3.  Under  this  statute  it  was  held  that  it  was  open  to 
the  courts  of  this  state  to  determine  for  themselves  whether  property  of  a  resi- 
dent decedent  was  "legally  subject"  to  a  tax  in  another  state,  even  if  the  tax  had 
been  sustained  by  the  highest  court  of  sucli  state.  Welch  v.  Treasurer  &  Receiver 
General,  227  Mass.  87  (1916). 

"St.  1916,  c.  268,  §3.  The  1907  statute  remains  in  force  with  respect  to 
persons  dying  between  September  1,  1907  and  May  26,  1916. 


Taxation  of  Legacies  and  Successions  619 

G.L.  c.  65,  §  1] 

resumed  the  taxation  of  personal  property  of  non-resident  dece- 
dents within  its  jurisdiction,  except  in  the  case  of  residents  of 
states  which  exempted  the  property  of  citizens  of  this  common- 
wealth under  like  circumstances.13 

Exemptions 

It  is  to  be  remembered  that  there  are  no  exemptions  based 
on  the  character  of  the  property  of  which  a  legacy  or  distribu- 
tive share  is  composed.  The  so-called  "tax  exempt"  securities 
are  not  exempt  from  the  operation  of  the  inheritance  tax.  Stocks 
of  Massachusetts  corporations  and  even  United  States  bonds 
are  included  in  determining  the  amount  of  the  inheritance  tax.1 
The  tax  is  not  on  the  property  but  upon  its  transmission,  and  the 
property  is  the  measure  and  not  the  subject  of  the  tax.  The 
only  exemptions  are  based  upon  the  character  of  the  party  re- 
ceiving the  legacy. 

The  original  statute  provided  that  property  passing  "to  or 
for  (the  use  of)  charitable,  educational  or  religious  societies  or 
institutions,  the  property  of  which  is  exempt  by  law  from  taxa- 
tion" should  not  be  subject  to  the  inheritance  tax.  Under  this 
statute  it  was  held  that  as  there  was  no  law  exempting  all  the 
property  of  charitable,  educational  or  religious  societies  or  in- 
stitutions from  general  taxation,  but  only  their  property  when 
used  in  a  certain  way,  it  was  not  entirely  clear  what  was  meant, 
but  the  more  reasonable  interpretation  was  that  bequests  to 
institutions  whose  property  is  generally  exempt  should  be  exempt 
from  this  tax,  regardless  whether  the  particular  piece  of  property 
bequeathed  would  itself  be  exempt.2  A  bequest  to  a  town  to 
establish  a  public  institution  of  one  of  the  designated  classes 
came  within  the  literal  wording  of  the  statute  and  was  conse- 
quently exempt.3  The  exemption  did  not  however  embrace  all 
charitable  gifts  but  only  those  in  which  a  charitable  institution 
incorporated  or  unincorporated  was  trustee  or  cestui  que  trust.4 

13  St.  1920,  c.  396,  §1.  The  1912  statute  remains  in  force  with  respect  to 
persons  dying  between  May  29,  1912  and  May  4,  1920. 

'Plummer  v.  Coler,  178  U.  S.  115  (1900);  Orr  v.  Gilman,  183  U.  S.  278 
(1901)  ;  Callahan  v.  Woodbridge,  171  Mass.  595  (1898). 

"Thus  it  was  held  in  First  Universalist  Society  v.  Bradford,  185  Mass.  310 
(1904)  that  the  bequest  of  a  parsonage  to  a  religious  society  was  exempt  from 
the  tax,  although  the  parsonage  itself  was  taxable. 

"Essex  v.  Brooks,  164  Mass.  79  (1895). 

4  Hooper  v.  Shaw,  176  Mass.  190  (1900). 


620  Taxation  in  Massachusetts 

[G.  L.  c.  65,  §  1 

The  exemption  applies  only  to  charitable  institutions  ex- 
empted from  taxation  by  the  laws  of  this  state,5  although  there 
is  no  requirement  that  a  charitable  institution  incorporated  in 
this  state  limit  its  field  of  usefulness  to  this  state  under  penalty 
of  taxation.6  When  a  testator  leaves  property  to  trustees  for 
a  charitable  purpose  to  be  carried  out  outside  the  commonwealth 
so  that  the  bequest  is  taxable,  the  trustees  cannot  escape  the 
tax  by  forming  a  Massachusetts  corporation  and  turning  over 
the  property  to  it;7  but  when  the  property  is  directly  devised 
to  such  charitable  purposes  as  the  trustees  may  designate,  and 
the  trustees  cause  a  corporation  to  be  formed  and  the  property 
turned  over  to  it,  the  bequest  is  exempt,  because  the  passage 
from  the  testator's  estate  to  the  corporation  is  direct.8  With 
respect  to  a  bequest  to  an  existing  corporation,  the  exemption 
depends  upon  the  purposes  and  work  of  the  corporation  at  the 
time  of  the  testator's  death.9 

In  1895  it  was  provided  that  bequests  to  towns  for  any  public 
purpose  should  not  be  subject  to  the  tax,10  and  there  is  no  doubt 
that  the  legislature  intended  to  confine  this  exemption  to  towns 
within  this  commonwealth.11  In  1905  this  exemption  was  ex- 
tended to  bequests  to  or  for  the  use  of  a  city  or  town  for  public 
purposes12  and  in  1906  bequests  to  a  trustee  or  trustees  for  pub- 
lic charitable  purposes  within  the  commonwealth  were  made 
exempt.13  In  the  statute  of  1907  which  originated  the  direct 
inheritance  tax  and  codified  and  re-enacted  the  existing  statutes 

5  A  bequest  to  a  municipal  or  charitable  or  educational  corporation  located 
outside  the  state  is  taxable.  Minot  v.  Winthrop,  162  Mass.  113  (1894)  ;  Rice  v. 
Bradford,  180  Mass.  545  (1902);  Pierce  v.  Stevens,  205  Mass.  219  (1910); 
Davia  v.  Treasurer  &  Receiver  General,  208  Mass.  343  (1911)  ;  Batt  v.  Treasurer 
&  Receiver  General  209  Mass.  319  (1911).  It  was  held  in  Board  of  Education  v. 
Illinois,  203  U.  S.  553  (1906),  that  there  was  nothing  in  violation  of  the  con- 
stitution of  the  United  States  in  a  state  statute  limiting  the  exemption  from  the 
legacy  tax  to  charitable  institutions  incorporated  within  the  state.  A  bequest  to 
the  World  Peace  Foundation,  a  corporation  organized  to  promote  peace  among 
nations,  is  for  charitable  rather  than  for  political  purposes,  and  is  exempt.  Park- 
hurst  v.  Treasurer  &  Receiver  General,  228  Mass.  196  (1917).  As  to  what  consti- 
tute charitable,  educational  and  religious  societies  within  the  meaning  of  the 
tax  laws  see  G.  L.  c.  59,  §5,  el.  3,  11,  supra,  pages  197,  205. 

•Balch  v.  Shaw,  174  Mass.  144   (1899). 

7  Pierce  v.  Stevens,  205  Mass.  219  (1910). 

8  Balch  v.  Shaw,  174  Mass.  144   (1899). 

•Parkhurst  v.  Treasurer  &  Receiver  General,  228  Mass.  196   (1917). 

10  St.  1895,  c.  307. 

"Davis  v.  Treasurer  &  Receiver  General,  209  Mass.  319  (1911). 

12  St.  1905,  c.  470. 

■  St.  1906,  c.  436. 


Taxation  of  Legacies  and  Successions  621 

G.  L.  c.  65,  §§  1, 2] 

relating  to  the  subject  of  inheritance  taxes,  the  last  exemption 
was  put  very  briefly  as  "for  or  upon  trust  for  any  charitable 
purposes,"14  and  the  same  phraseology  was  employed  in  the 
codification  of  1909. 15  In  the  same  year  however  the  whole  sub- 
ject of  the  geographical  limitation  of  exemptions  from  the  inher- 
itance tax  was  given  explicit  attention  by  the  legislature  and  the 
exemption  of  charitable  institutions  in  terms  confined  to  such 
institutions  "the  property  of  which  is  by  the  laws  of  this  com- 
monwealth exempt  from  taxation,"  the  exemption  of  cities  and 
towns  confined  to  cities  and  towns  "within  this  commonwealth" 
and  the  exemption  of  charitable  trusts  confined  to  "charities  to 
be  carried  out  within  this  commonwealth."16  The  statute  how- 
ever which  contained  these  provisions  was  held  to  be  merely  de- 
claratory of  the  existing  law  and  a  bequest  taking  effect  outside 
the  state  made  by  a  person  who  died  in  1908  was  held  to  be  sub- 
ject to  the  tax.17 

The  provision  as  to  exemption  has  remained  unchanged  since 
1909,  except  that  in  1916  legacies  to  the  commonwealth  itself 
were  added  to  the  tax  exempt  class.18 

Powers  of  Appointment 

Section  2.  Whenever  any  person  shall  exercise  a  power  of  ap- 
pointment, derived  from  any  disposition  of  property  made  prior  to 
September  first,  nineteen  hundred  and  seven,  such  appointment  when 
made  shall  be  deemed  a  disposition  of  property  by  the  person  exercis- 
ing such  power,  taxable  under  section  one,  in  the  same  manner  as 
though  the  property  to  which  such  appointment  relates  belonged  abso- 
lutely to  the  donee  of  such  power,  and  had  been  bequeathed  or  devised 
by  the  donee  by  will;  and  whenever  any  person  possessing  such  a 
power  of  appointment  so  derived  shall  omit  or  fail  to  exercise  the 
same  within  the  time  provided  therefor,  in  whole  or  in  part,  a  disposi- 
tion of  property  taxable  under  section  one  shall  be  deemed  to  take 
place  to  the  extent  of  such  omission  or  failure  in  the  same  manner  as 
though  the  persons  thereby  becoming  entitled  to  the  possession  or. 
enjoyment  of  the  property  to  which  such  power  related  had  succeeded 

"St.  1907,  c.  §1. 

15  St.  1909,  c.  490,  Part  IV,  §1. 

"St.  1909,  c.  527,  §1. 

1T  Davis  v.  Treasurer  &  Receiver  General,  208  Mass.  343  (1911). 

"St.  1916,  c.  268,  §1. 


622  Taxation  in  Massachusetts 

[G.  L.  c.  65,  §  2 
thereto  by  a  will  of  the  donee  of  the  power  failing  to  exercise  such 
power,  taking  effect  at  the  time  of  such  omission  or  failure. 

Under  the  original  statute  it  was  held  that  the  donor  of  a 
power  of  appointment  and  not  the  donee  was  the  decedent  whose 
estate  was  liable  to  taxation,  and  consequently  that  the  exercise 
after  the  enactment  of  the  inheritance  tax  statute  of  a  power 
of  appointment  created  prior  to  its  enactment  was  not  subject 
to  the  tax.1  Thus  remained  the  law  until  1909  when  a  statute 
which  is  in  substance  the  provision  quoted  above  was  enacted, 
in  effect  subjecting  to  the  provisions  of  the  direct  inheritance 
law  of  1907  the  subsequent  exercise  of  all  testamentary  powers 
of  appointment  created  prior  to  the  taking  effect  of  that  law, 
and  also  the  subsequent  passing  of  property  by  the  failure  to 
exercise  such  powers,  and  exonerating  from  the  provisions  of 
the  collateral  inheritance  law  of  1891  the  subsequent  exercise 
of  powers  created  after  its  enactment  and  prior  to  the  taking 
effect  of  the  direct  inheritance  law  of  1907,  upon  which  the 
taxes  had  not  already  been  settled.  The  constitutionality  of 
the  statute  of  1909  was  assailed  in  a  case  in  which  a  tax  was 
imposed  upon  the  passing  of  property  by  failure  to  exercise  a 
power  created  by  deed  long  before  the  enactment  of  any  inheri- 
tance tax  law  in  the  commonwealth ;  but  it  was  held  that  as  the 
succession  in  possession  and  enjoyment  was  not  determined  until 
the  donee  of  the  power  acted  or  refused  or  omitted  to  act,  it  was 
not  vested  in  anybody,  and  that  when  it  vested  in  possession 
through  a  disposition  dependent  upon  the  will  and  conduct  of 
the  donee  of  the  power  a  succession  tax  might  be  constitutionally 
imposed,2  and  the  same  result  was  reached  in  the  case  of  a  suc- 
cession tax  upon  the  equal  distribution  of  property  among  the 
children  of  the  beneficiary  for  life  by  reason  of  the  failure  of 
the  beneficiary  to  exercise  a  special  power  of  appointment  to 
fix  the  proportions  in  which  the  property  should  be  distributed 
among  his  children  and  grandchildren.3 

The  test  to  be  applied  to  determine  whether  property  pass- 

1  Emmons  v.  Shaw,  171  Mass.  410   (1898). 

JMinot  v.  Treasurer  &  Receiver  General,  207  Mass.  588  (1911).  See  also 
Moffitt  v.  Kelly,  218  U.  S.  400  (1910). 

'Burnham  v.  Treasurer  &  Receiver  General,  212  Mass.  165  (1912).  When, 
however,  upon  the  failure  of  a  donee  of  a  power  to  exercise  it,  another  person  is 
given  the  power,  no  tax  is  due  upon  the  failure  of  the  first  donee  to  exercise  the 
power,  because  no  one  thereby  became  entitled  to  the  possession  or  enjoyment  of 
the  property.   Attorney-General  v.  Thorp,  230  Mass.  25   (1918). 


Taxation  of  Legacies  and  Successions  623 

G.  L.  c.  65,  §§  2,  3] 

ing  by  the  exercise  of  a  power  of  appointment  under  the  present 
statute  is  this:  Would  the  property  in  question  have  been  sub- 
ject to  an  inheritance  tax  if  it  had  been  the  property  of  the 
donee  of  the  power  and  had  passed  by  way  of  devise  or  legacy 
under  his  will?4 

When  the  donee  of  the  power  dies  domiciled  in  another  state, 
so  much  of  the  property  is  subject  to  the  inheritance  tax  as  is 
within  the  jurisdiction  of  the  commonwealth  and  would  have 
been  taxable  if  the  donee  of  the  power  had  owned  it  outright.5 
This  principle  cannot  however  be  extended  to  justify  the  taxa- 
tion of  the  transfer  of  property  by  the  exercise  of  a  power  of 
appointment  by  a  resident  decedent,  when  the  power  was  cre- 
ated by  the  will  of  a  non-resident  and  the  property  is  not  physi- 
cally within  the  jurisdiction  of  the  commonwealth,  because  in 
such  case  the  succession  can  be  determined  and  enforced  without 
resorting  to  our  courts,  and  does  not  depend  upon  any  privilege 
conferred  by  our  laws.6 

When  a  decedent  having  a  general  power  of  appointment  dies 
insolvent,  having  exercised  the  power,  and  a  portion  of  the  sum 
appointed  is  applied  by  order  of  the  court  to  the  payment  of 
his  debts,  only  the  remainder  is  subject  to  the  inheritance  tax.7 
When  a  testator  directs  that  all  his  legacies  be  paid  in  full,  and 
that  taxes  be  charged  to  the  residue  of  his  estate,  such  a  direction 
does  not  apply  to  the  exercise  by  him  of  a  special  power  of  ap- 
pointment, and  the  inheritance  tax  must  be  paid  out  of  the  sum 
appointed  rather  than  out  of  the  residue  of  the  estate.8 

Gifts  in  Contemplation  of  Death 

Section  3.  Any  deed,  grant  or  gift  completed  inter  vivos,  except 
in  cases  of  bona  fide  purchase  for  full  consideration  in  money  or 
money's  worth,  made  not  more  than  six  months  prior  to  the  death  of 
the  grantor  or  donor,  shall,  prima  facie,  be  deemed  to  have  been  made 
in  contemplation  of  the  death  of  the  grantor  or  donor.  Notwith- 
standing any  provision  of  section  one,  no  tax  shall  be  payable  there- 

*Minot  v.  Treasurer  &  Receiver  General,  207  Mass.  588,  590  (1911)  ;  Clark 
v.  Treasurer  &  Receiver  General,  218  Mass.  292  (1914)  ;  Gardiner  v.  Treasurer  & 
Receiver  General,  225  Mass.  355,  362  (1916). 

6  Clark  v.  Treasurer  &  Receiver  General,  218  Mass.  292  (1914)  ;  Gardiner  v. 
Treasurer  &  Receiver  General,  225  Mass.  355   (1916). 

•Walker  v.  Treasurer  &  Receiver  General,  221  Mass.  600  (1915). 

THill  v.  Treasurer  &  Receiver  General,  229  Mass.  474  (1918). 

eLoring  v.  Gardner,  221  Mass.  571   (1915). 


624  Taxation  in  Massachusetts 

[G.  L.  c.  65,  §  3 
under  on  account  of  any  deed,  grant  or  gift  in  contemplation  of  death 
made  more  than  two  years  prior  to  the  death  of  the  grantor  or  donor, 
unless  made  or  intended  to  take  effect  in  possession  or  enjoyment  after 
such  death. 

In  1920  provision  was  made  for  the  first  time  for  subjecting 
to  the  inheritance  tax  completed  gifts  of  a  decedent,  which  took 
effect  at  once  in  possession  and  enjoyment,  provided  they  were 
made  by  him  in  contemplation  of  death.1  The  ultimate  test  of 
liability  to  taxation  in  such  cases  is  whether  the  gift  was  made 
in  contemplation  of  death,  although  the  statute  set  forth  above 
regulates  the  determination  of  the  question  by  providing  that 
a  completed  gift  made  within  six  months  of  the  death  of  the 
donor  shall  be  deemed  prima  facie  to  have  been  made  in  con- 
templation of  death,  and  that  in  no  event  shall  a  tax  be  payable 
on  such  a  gift  if  made  more  than  two  years  prior  to  the  death 
of  the  donor.  The  statute  applies  only  to  gifts  made  on  or 
after  May  27,  1920  ;2  and  the  tax  is  payable  at  the  expiration  of 
one  year  after  the  death  of  the  donor.3 

The  statute  taxing  gifts  in  contemplation  of  death  has  not 
yet  been  brought  before  the  supreme  judicial  court  of  Massa- 
chusetts; but  similar  statutes,  some  of  them  more  drastic,  have 
been  in  force  in  other  states  for  several  years,  and  have  been  held 
constitutional  when  their  validity  has  been  assailed.  The  con- 
stitutionality of  the  Massachusetts  act  has  however  been  ques- 
tioned as  creating  an  arbitrary  discrimination  between  different 
classes  of  completed  gifts,  and  as  attempting  to  levy  an  excise 
upon  the  exercise  of  a  natural  right,  which  is  not  a  "commodity" 
within  the  meaning  of  the  constitution  of  Massachusetts.4 

A  gift  is  made  in  contemplation  of  death  when  there  is  an 
apprehension  of  death  soon  to  occur,  arising  from  some  existing 
bodily  condition,  as  when  the  donor  is  suffering  from  a  disease 
which  he  knows  to  be  fatal,  or  from  some  impending  peril,  and 
the  statute  does  not  apply  to  the  general  expectation  of  eventual 
decease  commonly  entertained  by  all  persons,  even  if  the  donor 
is  advanced  in  years.  Ante-nuptial  settlements,  or  advance- 
ments made  to  the  children  of  a  decedent,  are  not  made  in  con- 
templation of  death  merely  because  they  take  the  place  of  a 

1  St.  1920,  c.  548.  See  G.  L.  c.  65,  §1,  supra,  page  608. 
1 G.  L.  c.  65,  §36,  infra,  page  660. 

3  G.  L.  c.  65,  §7,  infra,  page  627. 

4  See  Part  I,  §55. 


Taxation  of  Legacies  and  Successions  625 

G.  L.  c.  65,  §§  3,  4] 

testamentary  disposition.  Even  if  a  gift  was  made  within  six 
months  of  the  death  of  the  donor,  the  presumption  that  it  was 
made  in  contemplation  of  death  may  be  rebutted  by  competent 
evidence. 

Shares  in  Multi-State  Corporations 

Section  4.  When  the  personal  estate  passing  under  section  one 
from  any  person  not  an  inhabitant  of  the  commonwealth  consists  in 
whole  or  in  part  of  shares  in  any  railroad  or  street  railway  company 
or  telegraph  or  telephone  company  incorporated  under  the  laws  of 
this  commonwealth  and  also  of  some  other  state  or  country,  so  much 
only  of  each  share  as  is  proportional  to  the  part  of  such  company's 
line  lying  within  this  commonwealth  shall  be  considered  as  property 
of  such  person  within  the  jurisdiction  of  the  commonwealth  for  the 
purposes  of  this  chapter. 

Certain  important  public  service  corporations  having  lines 
in  more  than  one  state  are  incorporated  under  the  laws  of  every 
state  in  which  their  lines  are  located  although  they  have  but  a 
single  issue  of  capital  stock.  The  subjection  of  shares  in  such 
corporations  to  the  inheritance  tax  has  received  attention  from 
both  the  legislature  and  the  courts.  Under  the  general  pro- 
visions of  the  original  statute  it  was  held  that  shares  in  a  rail- 
road corporation  having  a  charter  both  from  Massachusetts 
and  from  another  state  and  having  track  in  both  states,  owned 
by  a  non-resident  decedent  and  kept  outside  this  commonwealth 
at  the  time  of  his  death,  were  subject  to  the  tax.  So  long  as  the 
railroad  holds  a  Massachusetts  charter,  it  was  said,  Massachu- 
setts can  prescribe  the  payment  of  a  tax  as  a  condition  of  the 
right  to  succeed  to  stock  issued  under  that  charter.1  It  was 
later  held  that  the  value  for  the  purpose  of  taxation  should 
under  such  circumstances  be  limited  to  the  value  of  the  property 
of  the  corporation  within  the  commonwealth.  A  different  rule, 
it  was  said,  might  be  constitutional  but  it  would  be  unfair  and 
the  legislature  cannot  be  assumed  to  have  intended  it.2  Just 
prior  to  this  decision  but  after  the  case  arose  a  statute  was 
enacted  .providing  for  an  apportionment  by  mileage  in  case  of 
shares  in  a  multi-state  corporation  held  by  a  non-resident  de- 

1  Moody  v.  Shaw,  173  Mass.  375   (1899). 

2  Kingsbury  v.'  Chapin,  196  Mass.  533   (1907). 


626  Taxation  in  Massachusetts 

[G.  L.  c.  65,  §§  4,  5 

cedent,  which  was  repealed  so  far  as  it  applied  to  the  estates 
of  persons  dying  after  May  29,  1912,3  when  the  state  abandoned 
the  policy  of  taxing  the  personal  property  of  non-resident  de- 
cedents. When  the  taxation  of  the  property  of  non-resident 
decedents  was  resumed,  the  statute  providing  for  the  appor- 
tionment of  the  tax  on  stock  in  multi-state  corporations  was 
re-enacted.4 

In  1911  provision  was  made  for  the  exemption  of  a  part  of 
the  value  of  stock  in  a  multi-state  corporation  owned  by  a  resi- 
dent decedent,  apportioned  according  to  mileage;5  but  when 
the  state  resumed  the  policy  of  taxing  all  the  personal  property 
of  resident  decedents,  wherever  located,  this  provision  was  re- 
pealed.8 

Reciprocal  Exemption  of  Non-Resident  Decedents 

Section  5.  Property  of  a  non-resident  decedent  which  is  within 
the  jurisdiction  of  the  commonwealth  at  the  time  of  his  death,  if  sub- 
ject to  a  tax  of  like  character  with  that  imposed  by  this  chapter  by 
the  law  of  the  state  or  country  of  his  residence,  shall  be  subject  only 
to  such  part  of  the  tax  hereby  imposed  as  may  be  in  excess  of  the  tax 
imposed  by  the  laws  of  such  other  state  or  country,  provided  that  a 
like  exemption  is  made  by  the  laws  of  such  other  state  or  country  in 
favor  of  estates  of  residents  of  this  commonwealth ;  but  no  such  ex- 
emption shall  be  allowed  until  the  tax  provided  for  by  the  law  of 
such  other  state  or  country  shall  be  actually  paid,  guaranteed,  or 
secured  in  accordance  with  law. 

In  1907  a  statute  in  substance  the  same  as  the  foregoing  was 
enacted,1  and  this  statute  remained  in  force  until  1912  when 
the  state  renounced  all  taxation  of  the  estates  of  non-resident  de- 
cedents.2 In  1920  the  state  resumed  the  taxation  of  the  prop- 
erty of  non-resident  decedents,  and  the  statute  establishing 
reciprocal  exemptions  was  revived.3 

3  St.  1907,  c.  563,  §2,  codified  as  St.  1909,  c.  490,  IV,  §2  and  repealed  by  St. 
1912,  c.  678,  §2. 

*  St.  1920,  c.  396,  §  2,  applicable  to  persons  dying  after  May  4,  1920. 
8  St.  1911,  c.  502,  §1. 

°St.  1916,  c.  268,  §3,  applicable  to  persons  dying  after  May  26,  1916. 
xSt.  1907,  c.  563,  §3   (last  sentence). 

2  St.  1912,  c.  678,  §2  (with  respect  to  the  estates  of  persons  dying  after 
May  29,  1912). 

3  St.  1920,  c.  397,  §3  (with  respect  to  the  estate  of  persons  dying  after 
May  4,  1920). 


Taxation  of  Legacies  and  Successions  627 

G.  L.  c.  65,  §§  5-7] 

While  the  1907  statute  was  in  force  it  was  held  that  a  "like 
exemption"  was  made  by  the  laws  of  another  state  with  respect 
to  the  taxation  of  intangible  personal  property  within  the  mean- 
ing of  the  statute,  when  the  laws  of  such  state  exempted  from 
the  inheritance  tax  all  intangible  personal  property  of  non- 
residents, independently  of.  any  correlative  concession  by  other 
states;  and  the  property  of  a  resident  of  another  state  is  not 
subject  to  taxation  here,  if  similar  property  of  a  decedent  resi- 
dent of  this  state,  within  the  jurisdiction  of  such  other  state, 
would  not  be  taxed  by  such  other  state.4 

Persons  Liable  for  the  Tax 

Section  6.  Administrators,  executors  and  trustees,  grantees  or 
donees  under  conveyances  or  gifts  made  during  the  life  of  the  grantor 
or  donor,  and  persons  to  whom  beneficial  interests  shall  accrue  by 
survivorship,  shall  be  liable  for  the  taxes  imposed  by  this  chapter, 
with  interest,  until  the  same  have  been  paid. 

Taxes  imposed  upon  the  passing  of  property  by  will  or  by 
the  laws  regulating  intestate  succession,  though  imposed  on  the 
particular  legacies  or  distributive  shares,  are  payable  by  the  exe- 
cutor, administrator  or  trustee,  and  not  by  the  legatee  or  dis- 
tributee, except  in  the  case  of  the  tax  on  a  future  interest  com- 
ing into  possession  when  there  is  no  executor,  administrator  or 
trustee,  in  which  case  the  tax  is  payable  by  the  person  receiving 
the  interest.  On  the  other  hand,  taxes  imposed  upon  the  pass- 
ing of  property  by  gift,  whether  intended  to  take  effect  in  pos- 
session or  enjoyment  after  the  death  of  the  donor,  or  made  in 
contemplation  of  death,  and  by  survivorship,  are  payable  by 
the  donee  or  the  survivor,  since  such  property  would  not  consti- 
tute assets  of  the  estate  of  the  decedent  or  come  into  the  pos- 
session of  his  executor  or  administrator. 

Time  of  Payment 

Section  7.  Taxes  imposed  by  this  chapter  upon  property  or  in- 
terests therein,  passing  by  will  or  by  laws  regulating  intestate  suc- 
cession, shall  be  payable  to  the  state  treasurer  by  the  executors,  ad- 
ministrators or  trustees  at  the  expiration  of  one  year  from  the  date  of 

4  Bliss  v.  Bliss,  221  Mass.  201,  209  (1915)  ;  Borden  v.  Treasurer  &  Receiver 
General,  221  Mass.  212  (1915). 


628  Taxation  in  Massachusetts 

[G.  L.  c.  65,  §§  7,  8 

the  giving  of  bond  by  the  executors,  administrators  or  trustees  first 
appointed;  except  that  in  all  cases  where  there  shall  be  a  devise, 
descent  or  bequest  to  take  effect  in  possession  or  come  into  actual 
enjoyment  after  the  expiration  of  one  or  more  life  estates  or  of  a  term 
of  years,  the  taxes  thereon  shall  be  payable  by  the  executors,  adminis- 
trators or  trustees  in  office  when  such  right  of  possession  accrues,  or, 
if  there  is  no  such  executor,  administrator  or  trustee,  by  the  persons 
so  entitled  thereto,  at  the  expiration  of  one  year  from  the  date  when 
the  right  of  possession  accrues  to  the  persons  so  entitled. 

If  the  probate  court,  acting  under  section  thirteen  of  chapter  one 
hundred  and  ninety-seven,  has  ordered  the  executor  or  administrator 
to  retain  funds  to  satisfy  a  claim  of  a  creditor,  the  payment  of  the 
tax  may  be  suspended  by  the  court  to  await  the  disposition  of  such 
claim. 

Taxes  imposed  by  this  chapter  upon  property  or  interests  therein, 
passing  by  deed,  grant  or  gift  to  take  effect  in  possession  or  enjoy- 
ment after  the  death  of  the  grantor  or  donor,  or  upon  beneficial  inter- 
ests arising  or  accruing  by  survivorship  in  any  form  of  joint  owner- 
ship, shall  be  payable  by  the  grantee,  donee  or  survivor  at  the  expira- 
tion of  one  year  from  the  date  when  his  right  of  possession  or  enjoy- 
ment accrues.  Taxes  imposed  by  this  chapter  upon  property  or  inter- 
ests therein  passing  by  deed,  grant  or  gift  made  in  contemplation  of 
death  shall  be  payable  by  the  grantee  or  donee  at  the  expiration  of 
one  year  after  the  death  of  the  grantor  or  donor. 

In  case  of  any  deed,  grant  or  gift  of  a  life  interest  or  term  of 
years,  the  donee  for  life  or  years  shall  pay  a  tax  only  on  the  value  of 
his  interest,  and  the  donee  of  the  future  interest  shall  pay  his  tax 
when  his  right  of  possession  or  enjoyment  accrues. 

Section  8.  If  a  foreign  executor,  administrator  or  trustee  as- 
signs or  transfers  any  stock  in  any  national  bank  situated  in  this  com- 
monwealth, or  in  any  corporation  organized  under  the  laws  of  this 
commonwealth,  owned  by  a  deceased  non-resident  at  the  date  of  his 
death  and  liable  to  a  tax  under  this  chapter,  the  tax  shall  be  paid  to 
the  state  treasurer  at  the  time  of  such  assignment  or  transfer,  and  if 
it  is  not  paid  when  due,  such  executor,  administrator  or  trustee  shall 
be  personally  liable  therefor  until  it  is  paid.  A  bank  situated  in  this 
commonwealth  or  a  corporation  organized  under  the  laws  of  this 
commonwealth  which  shall  record  a  transfer  of  any  share  of  its  stock 
made  by  a  foreign  executor,  administrator  or  trustee,  or  issue  a  new 
certificate  for  a  share  of  its  stock  at  the  instance  of  a  foreign  executor, 


Taxation  op  Legacies  and  Successions  629 

G.  L.  c.  65,  §  8] 

administrator  or  trustee,  before  all  taxes  imposed  thereon  by  this 
chapter  have  been  paid,  shall  be  liable  for  such  tax  in  an  action  of 
contract  brought  by  the  state  treasurer. 

Under  the  original  statute  of  1891  it  was  provided  that  when 
there  was  a  devise  for  life  or  years  that  was  not  taxable  by 
reason  of  the  relationship  of  the  devisee  to  the  testator,  and 
a  remainder  to  a  collateral  heir  or  a  stranger  that  was  taxable, 
the  value  of  the  life  estate  should  be  appraised  and  deducted 
from  the  total  value,  and  the  remainder  should  be  taxed  in  the 
established  manner;1  and  it  was  further  provided  that  all  taxes 
imposed  by  the  act  should  be  paid  by  the  executors,  adminis- 
trators or  trustees  at  the  expiration  of  two  years  from  the  date 
of  their  giving  bond2  except  when  the  probate  court  had  ordered 
the  executor  or  administrator  to  retain  funds  to  satisfy  the  claim 
of  a  creditor  whose  right  of  action  had  not  accrued,  or  when  the 
probate  court  ordered  the  time  of  payment  extended.3  These 
statutes  remained  unchanged  until  1902,  except  for  the  striking 
out  in  1895  of  a  clause  permitting  payment  to  be  made  to  the 
county  treasurer  instead  of  to  the  treasurer  of  the  common- 
wealth.4 Under  these  statutes  it  was  held  that  when  property 
was  left  in  trust  to  pay  the  income  to  a  person  so  related  to 
the  testator  that  the  bequest  was  not  taxable  and  on  his  death 
to  pay  the  principal  to  one  not  exempt,  the  tax  on  the  remainder 
must  be  paid  out  of  the  principal  although  the  result  was  to 
diminish  the  income  of  the  exempt  beneficiary;  and  that  in  the 
absence  of  specific  authority  in  the  will  this  loss  would  not  be 
made  good  to  him  out  of  the  estate.5  It  was  further  held  that 
when  an  annuity  was  devised  to  collateral  kindred,  the  whole 
tax  thereon  should  be  paid  out  of  the  annuity  as  soon  as  it  be- 
came payable,  even  although  the  entire  first  payment  of  the 
annuity  was  thereby  exhausted.6  When  a  life  estate  of  the 
exempt  class  was  terminated  before  the  payment  of  the  tax 
so  that  its  real  value  could  be  actually  determined,  nevertheless 

•  St.  1891,  c.  425,  §2. 
'St.  1891,  c.  425,  §4. 

•  St.  1891,  c.  425,  §18. 
4  St.  1895,  c.  430,  §1. 

BMinot  v.  Winthrop,  162  Mass.  113  (1894). 

•Minot  v.  Winthrop,  162  Mass.  113  (1894).  Since  1912,  the  statutes  have 
specifically  provided  that  the  tax  should  be  paid  out  of  capital  and  not  income. 
St.  1912,  c.  678,  §1,  now  G.  L.  c.  65,  §12,  infra,  page  635. 


630  Taxation  in  Massachusetts 

[G.  L.  c.  65,  §  8 
for  the  purpose  of  fixing  the  tax  on  the  remainder,  the  life  estate 
was  required  to  be  valued  on  the  basis  of  its  probable  duration 
at  the  death  of  the  testator.7  When  the  remainder  consisted  of 
future  and  contingent  interests,  and  it  could  not  be  determined 
until  long  after  the  testator's  death  whether  they  would  fall  to 
direct  or  to  collateral  heirs,  a  case  arose  for  the  probate  court 
to  defer  payment  of  the  tax,  and  the  liability  of  the  remainder 
to  the  tax  depended  upon  the  outcome  of  the  contingency.8 
There  was  nothing  in  the  statute  which  limited  the  time  within 
which  suit  might  be  brought  to  recover  the  tax.9 

In  1902  a  radical  change  was  made  and  a  statute  enacted  in 
that  year10  provided  that  when  there  was  a  devise,  descent  or 
bequest  to  strangers  or  collaterals  to  take  effect  in  possession 
or  enjoyment  after  a  life  estate  or  term  for  years  (1)  the  tax 
thereon  should  not  be  payable  until  the  persons  entitled  came 
into  possession  of  the  property;  (2)  the  tax  should  be  based  on 
the  actual  value  of  the  property  when  the  right  of  possession 
accrued;  (3)  the  liability  for  payment  should  rest  upon  the 
beneficiary  instead  of  upon  the  executor  or  administrator.  It 
was  held  that  the  statute  was  retrospective  and  applied  to  all 
estates  upon  which  the  tax  had  not  been  paid,11  and  was  con- 
stitutional as  so  construed,  although  it  might  increase  the  amount 
of  the  tax  on  the  remainderman,  by  reason  of  the  appreciation 
in  value  of  the  property  during  the  preceding  term  for  life 
or  years,  as  it  was  aimed  to  do  more  exact  justice  to  both  the 
commonwealth  and  to  the  taxable  beneficiaries  by  substituting 
a  real  for  an  estimated  valuation  which  might  be  incorrect  by 
reason  of  the  variation  between  the  actual  and  the  estimated 
duration  of  the  preceding  life  estate  or  by  reason  of  the  appre- 
ciation or  depreciation  of  the  property  between  the  death  of 
the  testator  and  the  acquisition  of  possession  by  the  remainder- 
man.12 There  was  nothing  in  the  statute  which  limited  its 
application  to  remainders  after  such  previous  estates  as  were 
not  subject  to  the  tax.13    The  statute  permitted  the  payment 

7  Howe  v.  Howe,  179  Mass.  546  ( 1901 ) . 

8  Howe  v.  Howe,  179  Mass.  546  (1901). 
•Howe  v.  Howe,  179  Mass.  546  (1901). 
"  St.  1902,  c.  473. 

"Stevens  v.  Bradford,  185  Mass.  439  (1904). 

12  Attorney  General  v.  Stone,  209  Mass.  186  (1911), 

18  1  Opinions  of  Attorney  General,  76. 


Taxation  of  Legacies  and  Successions  631 

G.  L.  c.  65,  §  8] 

of  the  tax  at  any  period  previous  to  the  acquisition  of  posses- 
sion, the  value  being  fixed  as  of  the  time  of  payment  after  de- 
ducting the  value  of  the  preceding  term. 

In  1903,  it  apparently  being  felt  that  the  interests  of  the 
commonwealth  were  not  sufficiently  protected,  it  was  provided 
that  a  tax  on  the  remainder  or  reversion  in  personal  property  of 
the  estates  of  persons  dying  thereafter  should  be  assessed  and 
collected  under  the  provisions  of  the  original  statutes  unless  the 
persons  beneficially  interested  gave  bond  within  one  year  from 
the  death  of  the  decedent  for  the  payment  of  the  tax  when  they 
should  enter  into  possession.14  For  the  tax  on  remainders  and 
reversions  in  real  estate  the  commonwealth  was  sufficiently  pro- 
tected by  its  lien. 

The  provisions  of  the  last  mentioned  statutes  relating  to 
the  deferment  of  the  payment  of  taxes  upon  estates  in  remainder 
or  reversion  received  considerable  modification  when  the  direct 
inheritance  tax  of  1907  was  enacted.  Such  taxes  were  made  pay- 
able by  the  executor,  administrator  or  trustee  in  office  when 
the  right  of  possession  accrued  and  if  there  was  no  executor,  ad- 
ministrator  or  trustee,  by  the  person  entitled  to  the  property; 
and  a  sum  of  money  might  be  deposited  instead  of  a  bond.  The 
date  of  payment  was  however  definitely  fixed  as  the  date  when 
right  of  possession  accrued  if  there  was  an  executor,  adminis- 
trator or  trustee  in  office;  otherwise  one  year  later,  so  that  the 
filing  of  the  bond  was  no  longer  a  condition  precedent  to  the 
deferment  of  the  tax.  The  only  advantages  in  filing  the  bond 
or  making  the  deposit  are  that  it  extinguishes-  the  lien  upon  the 
real  estate  and  makes  possible  the  allowance  of  the  final  probate 
accounts  of  the  executor,  administrator  or  trustee.  In  1909  a 
change  was  made  by  striking  out  a  provision  that  the  tax  should 
be  payable  before  the  expiration  of  two  years  if  the  legacies 
were  paid  earlier.15  The  statute  which  made  this  last  amendment 
and  re-enacted  the  remainder  of  the  section  was  given  general 
application  to  taxes  which  remained  unpaid,  and  accordingly  it 
has  been  held  that  although  the  statute  of  1907  was  in  terms 
wholly  prospective  in  operation,  the  re-enactment  of  the  section 
now  under  consideration  in  1909  made  it  applicable  to  taxes 

11  St.  1903,  c.  276.    See  the  following  case  decided  under  that  statute.    Dow 
v.  Abbott,  197  Mass.  283  (1908). 
15  St.  1909,  c.  527,  §2. 


632  Taxation  in  Massachusetts 

[G.  L.  c.  65,  §  8 
assessed  under  the  statutes  in  force  prior  to  1907  as  well  as  to 
those  under  the  act  of  that  year.16 

In  1915  the  time  of  payment  was  reduced  to  one  year  from 
the  date  of  giving  bond  by  the  executors,  administrators  or  trus- 
tees first  appointed,17  and  in  the  following  year  the  tax  was 
made  payable  in  the  case  of  the  passing  of  property  by  gift 
or  survivorship  within  one  year  after  the  right  of  possession 
accrued.18 

The  provisions  of  section  eight  were  first  enacted  in  1900,19 
but  were  repealed  in  1912  with  respect  to  the  estates  of  persons 
dying  thereafter,20  as  they  ceased  to  be  applicable  after  the  state 
renounced  the  taxation  of  the  estates  of  deceased  non-residents. 
In  1920,  when  the  state  resumed  the  taxation  of  the  estates  of 
deceased  non-residents  within  its  jurisdiction,  the  statute  was  re- 
enacted.21 

Summary 

The  tax  is  payable  and  interest  begins  to  run  one  year  from 
the  date  of  giving  bond  by  the  executor  or  administrator  except 
(1)  When  the  probate  court  has  ordered  the  retention  of  funds 
to  satisfy  a  claim  of  a  creditor  it  may  order  payment  of  the  tax 
suspended.22 

(2)  When  there  is  an  estate  to  take  effect  in  possession  after 
a  term  for  life  or  years,  the  tax  is  not  payable  until  the  right 
to  possession  accrues,  if  there  is  an  executor,  administrator  or 
trustee  in  office;  and  if  there  is  no  such  person  in  office  at  that 
time  the  tax  is  not  payable  until  a  year  later;23  but  the  tax 

"St.  1909,  c.  527,  §10;  Attorney  General  v.  Stone,  209  Mass.  186,  192  (1911). 
"St.  1915,  c.  162. 

18  St.  1916,  c.  268,  §2. 

19  St.  1900,  c.  371,  §1.  This  statute  first  appeared  in  1900  as  a  means  of 
more  readily  enforcing  payment  of  the  inheritance  tax  on  stock  in  national  banks 
situated  in  this  commonwealth  and  in  Massachusetts  corporations,  which  it  had 
been  held  in  the  previous  year  were  subject  to  the  tax,  although  the  foreign 
executor  had  succeeded  in  getting  them  transferred  without  taking  out  ancillary 
administration  here.  Greves  v.  Shaw,  173  Mass.  205  (1899).  The  statute  in  its 
original  form  and  in  the  Revised  Laws  applied  to  the  obligations  of  such  cor- 
porations as  well  as  to  their  stock,  but  as  enacted  in  the  statute  of  1907  and  in 
its  present  form  the  provision  as  to  obligations  ia  omitted. 

30  St.  1912,  c.  678,  §2. 
21  St.  1920,  c.  396,  §4. 
33  G.  L.  c.  65,  §7,  par.  2. 
23  G.  L.  c.  65,  §7,  par.  1. 


Taxation  op  Legacies  and  Successions  633 

G.  L.  c.  65,  §§  8,  9] 

may  at  the  option  of  the  persons  entitled  to  a  future  interest  be 
paid  earlier.24 

(3)  When  a  foreign  executor,  administrator  or  trustee  of  a 
non-resident  decedent  causes  stock  in  a  Massachusetts  corpora- 
tion or  in  a  national  bank  situated  in  this  commonwealth  to  be 
transferred,  the  tax  becomes  payable  forthwith.25 

(4)  The  probate  court  may  extend  the  time  of  payment  of 
the  tax  whenever  the  circumstances  of  the  case  require  such 
extension.26 

(5)  In  the  case  of  a  gift  taking  effect  in  possession  or  en- 
joyment after  the  death  of.  the  donor,  or  upon  the  accrual  of  an 
interest  in  joint  property  by  survivorship,  the  tax  becomes 
payable  at  the  expiration  of  one  year  from  the  date  when  the 
right  of  possession  or  enjoyment  accrues.27 

(6)  In  the  case  of  a  gift  made  in  contemplation  of  death,  the 
tax  becomes  payable  at  the  expiration  of  one  year  from  the  death 
of  the  donor.28 

(7)  In  case  of  any  gift  of  a  future  interest,  the  tax  on  the 
future  interest  becomes  payable  when  the  right  of  possession 
or  enjoyment  thereof  accrues. 


29 


Lien  for  Tax 

Section  9.  Property  of  which  a  decedent  dies  seized  or  possessed, 
subject  to  taxes  as  aforesaid,  in  whatever  form  of  investment  it  may 
happen  to  be,  and  all  property  acquired  in  substitution  therefor,  shall 
be  charged  with  a  lien  for  all  taxes  and  interest  thereon  which  are  or 
may  become  due  on  such  property;  but  said  lien  shall  not  attach  to 
any  personal  property  after  the  same  has  been  sold  or  disposed  of  for 
value  by  the  executors,  administrators  or  trustees,  or  to  real  estate 
after  it  has  been  conveyed  by  the  executors,  administrators  or  trus- 
tees under  license  or  decree  of  the  probate  court,  or  to  real  estate 
which,  during  the  life  of  the  grantor,  is  conveyed  by  recorded  or 
registered  deed  and  transferred  in  possession  and  enjoyment  by  him  to 
the  grantee,  in  contemplation  of  death.  The  lien  charged  by  this 
chapter  upon  any  real  estate  or  separate  parcel  thereof  may  be  dis- 

24  G.  L.  c.  65,  §14,  infra,  page  640. 

25  G.  L.  c.  65,  §8. 

20  G.  L.  c.  65,  §32,  infra,  page. 

27  G.  L.  c.  65,  §7,  par.  3. 

28  G.  L.  c.  65,  §7,  par.  3. 

29  G.  L.  c.  65,  §7,  par.  4. 


634  Taxation  in  Massachusetts 

[G.  L.  c.  65,  §§  9,  10 
charged  by  the  payment  of  all  taxes  due  and  to  become  due  upon  said 
real  estate  or  separate  parcel,  or  by  an  order  or  decree  of  the  probate 
court  discharging  said  lien  and  securing  the  payment  to  the  common- 
wealth of  the  tax  due  or  to  become  due  by  bond  or  deposit  as  herein- 
after provided,  or  by  transferring  such  lien  to  other  real  estate  owned 
by  the  owner  or  owners  of  said  real  estate  or  separate  parcel  thereof. 

The  provisions  for  the  enforcement  of  the  lien  on  real  estate 
are  found  in  section  thirty-one. 

Delivery  of  Assets  to  Foreign  Executor 

Section  10.  Securities  or  assets  belonging  to  the  estate  of  a  de- 
ceased non-resident  shall  not  be  delivered  or  transferred  to  a  foreign 
executor,  administrator  or  legal  representative  of  such  decedent,  un- 
less such  executor,  administrator  or  legal  representative  has  been 
licensed  to  receive  said  securities  or  assets  under  section  three  of 
chapter  two  hundred  and  four.  License  to  receive,  sell,  transfer  or 
convey  securities  or  assets  under  said  section  shall  not  be  granted 
unless  it  appears  to  the  judge  of  the  probate  court  that  all  taxes  im- 
posed by  this  chapter  have  been  paid  or  secured  according  to  law. 
Any  person  or  corporation  that  delivers  or  transfers  any  securities  or 
assets  belonging  to  the  estate  of  a  non-resident  decedent  before  all 
taxes  imposed  thereon  by  this  chapter  have  been  so  paid  or  secured 
shall  be  liable  for  such  tax  in  an  action  of  contract  brought  by  the 
state  treasurer. 

This  section  was  first  enacted  in  19001  and  was  re-enacted  in 
the  Revised  Laws,  but  it  received  considerable  modification  in 
the  statute  of  1907, 2  the  express  prohibition  of  the  granting  of 
the  license  and  the  liability  for  delivering  assets  before  all  taxes 
have  been  paid  having  been  added  at  that  time.  The  statute 
was  repealed  as  inapplicable  in  19 12,3  so  far  as  it  related  to 
the  estates  of  persons  dying  thereafter,  when  the  state  ceased 
to  tax  the  estates  of  deceased  non-residents;  but  when  the  tax- 
ation of  such  estates  was  resumed  in  1920,  the  statute  was  re- 
enacted.4    The  section  of  the  General  Laws  referred  to  in  the 

'St.  1900,  c.  371,  §2. 

2  St.  1907,  c.  563,  §16.  See  also  St.  1909,  c.  527,  §7. 

8  St.  1912,  c.  678,  §2. 

*  St.  1920,  c.  396,  §5. 


Taxation  op  Legacies  and  Successions  635 

G.L.  c.  65,  §§  10,11,12] 

statute  allows  an  executor,  administrator,  guardian  or  trustee 
duly  appointed  in  another  state  or  country  to  file  a  petition  in 
the  probate  court  for  license  to  receive  personal  property  situ- 
ated in  this  commonwealth  to  which  he  is  entitled. 

The  section  now  under  consideration  relates  only  to  the  col- 
lection of  the  inheritance  tax,  and  cannot  be  invoked  in  aid  of 
the  claim  of  a  private  party.5 

Interest  and  Discount 

Section  11.  If  taxes  imposed  by  this  chapter  are  not  paid  when 
due,  interest  shall  be  charged  and  collected  from  the  time  the  same 
became  payable.  If  a  tax  imposed  by  this  chapter  is  paid  prior  to  the 
date  upon  which  it  is.  due,  it  shall  be  discounted  at  the  rate  of  four 
per  cent  a  year. 

When  interest  begins  to  run  in  any  case  depends  upon 
when  the  tax  is  due,  as  established  by  other  provisions  of  the 
law.1  Ordinarily  interest  begins  to  run  one  year  from  the  date 
of  the  executor's  or  administrator's  bond;2  but  when  there  is 
a  deferment  of  the  tax  on  a  "future  estate,  and  there  is  an  exe- 
cutor, administrator  or  trustee  in  office  when  the  right  of  pos- 
session to  such  estate  accrues,  the  tax  is  payable  and  interest 
begins  to  run  when  the  right  of  possession  accrues;  but  if  there 
is  no  such  officer  in  existence  when  the  right  of  possession  ac- 
crues the  tax  is  not  payable  and  interest  does  not  begin  to  run 
until  one  year  thereafter.3 

Tax  Chargeable  to  Capital 

Section  12.  All  taxes  under  this  chapter  shall  be  paid  out  of 
and  chargeable  to  capital  and  not  income,  unless  otherwise  provided 
in  a  will  or  codicil,  or  deed  or  other  instrument  creating  the  grant 
or  gift;  but  this  provision  shall  not  affect  any  right  of  the  common- 
wealth to  collect  such  tax,  or  any  lien  therefor. 

The  enactment  of  the  foregoing  provision  in  1912  modified 
the  existing  rule,  and.  established  the  principle  that  all  inheri- 

5  Morrison  v.  Hass,  229  Mass.  514  (1918);  Morrison  v.  Berkshire  Loan  & 
Trust  Co.,  229  Mass.  519  (1918). 

1  G.  L.  c.  65,  §7,  supra,  page  627. 

2  Bradford  v.  Storey,  189  Mass.  104  (1905). 
"Attorney  General  v.  Stone,  209  Mass.  186,  192  (1911). 


636  Taxation  in  Massachusetts 

[G.L.  c.  65,  §§12,  13 

tance  taxes  should  be  paid  out  of  capital  and  not  income.1 
When  in  a  will  which  establishes  a  number  of  trusts  there  is 
no  sequestration  of  any  part  of  the  general  trust  fund,  but  it 
is  held  as  a  unit,  the  inheritance  taxes  must  be  paid  out  of  this 
fund  as  the  capital  of  the  estate.2 

The  state  inheritance  tax,  unlike  the  federal  estate  tax,  is 
normally  assessed  upon  and  payable  out  of  each  legacy  and  dis- 
tributive share,  and  is  not  paid  out  of  the  residue  of  the  estate 
unless  the  testator  expressly  so  directs.  Even  when  a  devise  of 
real  estate  was  made  in  accordance  with  a  contract  between  the 
testator  and  the  devisee,  the  inheritance  tax  must  be  paid  out  of 
the  devise;3  and  a  direction  by  a  testator  to  pay  taxes  on  lega- 
cies out  of  the  residue  of  his  estate  will  not  include  appointments 
made  by  him  in  his  will  under  a  power  established  by  the  will 
of  a  prior  decedent.4 

Value  for  Purposes  of  the  Inheritance  Tax 

Section  13.  Except  as  otherwise  provided  in  this  and  the  fol- 
lowing section,  the  tax  imposed  by  this  chapter  shall  be  assessed  upon 
the  actual  value  of  the  property  at  the  time  of  the  death  of  the 
decedent.  In  case  of  a  devise,  descent,  bequest  or  grant  to  take  effect 
in  possession  or  enjoyment  after  the  expiration  of  one  or  more  life 
estates  or  of  a  term  of  years,  the  tax  shall  be  assessed  on  the  actual 
value  of  the  property  or  interest  therein  coming  to  the  beneficiary  at 
the  time  when  he  becomes  entitled  to  the  same  in  possession  or  enjoy- 
ment. The  value  of  an  annuity  or  a  life  interest  in  any  such  property, 
or  any  interest  therein  less  than  an  absolute  interest,  shall  be  de- 
termined by  the  "American  Experience  Tables"  at  four  per  cent 
compound  interest;  but  when  an  annuity  or  a  life  interest  is  termi- 
nated by  the  death  of  the  annuitant  or  life  tenant,  and  the  tax  upon 
such  interest  is  not  due  and  has  not  been  paid  in  advance,  the  value 
of  said  interest  for  the  purposes  of  taxation  under  this  chapter  shall 
be  the  amount  of  the  annuity  or  income  actually  paid  or  payable  to 
the  annuitant  or  life  tenant  during  the  period  for  which  he  was  en- 
titled to  the  annuity  or  was  in  possession  of  the  life  estate. 

1  St.  1912,  c.  678,  §1.  As  to  the  earlier  law,  see  Sohier  v.  Eldredge,  103 
Mass.  345  (1869). 

2Parkhurst  v.  Ginn,  228  Mass.  159  (1917). 
sLane  v.  Richardson,  234  Mass.  403  (1920). 
'Loring  v.  Gardner,  221  Mass.  571   (1915). 


Taxation  of  Legacies  and  Successions  637 

G.L.C.  65,  §13] 

The  original  statute  provided  merely  that  the  value  for  the 
purpose  of  taxation  should  be  the  "actual  value"  without  fixing 
a  date  as  of  when  the  valuation  should  be  made ;  but  it  was  held 
by  the  court  in  a  case  in  which  the  property  had  greatly  appre- 
ciated in  value  between  the  death  of  the  testator  and  the  dis- 
tribution of  the  legacies  that  it  could  be  gathered  from  other 
portions  of  the  act  that  it  was  the  intention  of  the  legislature 
that  the  valuation  should  be  made  as  of  the  date  of  the  death  of 
the  decedent.1  Income  accruing  between  the  death  of  the  de- 
cedent and  the  distribution  of  the  property  is  not  taxed,2  but 
income  which  has  accrued  before  the  death  of  the  decedent  is 
included  in  his  estate  subject  to  taxation  although  not  collected 
until  after  his  death,  the  income  in  such  cases  being  apportioned 
as  of  the  date  of  his  death.  This  principle  does  not  however  jus- 
tify the  taxation  of  income,  though  paid  at  fixed  intervals, 
which  is  not  apportionable,  such  as  rent  or  dividends  on  stock 
of  corporations. 

Although  the  valuation,  except  in  certain  prescribed  in- 
stances, is  made  as  of  the  date  of  the  death  of  the  decedent, 
and  the  rights  of  all  parties  vest  at  the  death,  in  determining 
the  amount  upon  which  the  tax  is  computed  all  payments  made 
by  the  executor  or  administrator  to  relieve  the  estate  from  a 
general  charge  upon  it,  to  discharge  the  debts  or  other  obligations 
of  decedent  or  to  defray  the  legal  expenses  of  administration 
are  deducted,  and  the  tax  is  only  upon  the  balance  passing  to 
the  legatee  or  distributee.3  Applying  this  principle,  inheritance 
taxes  paid  to  the  United  States,4  and  inheritance  taxes  which 
the  executor  or  administrator  was  obliged  to  pay  to  other  states 
in  order  to  reduce  the  property  of  the  decedent  to  possession, 
and  property  taxes  assessed  before  but  payable  after  the  death 
of  decedent  are  deductible.5 

When  the  decedent  was  a  non-resident  part  of  whose  prop- 
erty was  within  the  jurisdiction  of  Massachusetts,  it  was  the 

i  Hooper  v.  Bradford,  178  Mass.  95  (1901). 

2  Hooper  v.  Bradford,  178  Mass.  95  (1901). 

3  Old  Colony  Trust  Co.  v.  Treasurer  &  Receiver  General,  Mass.  (.1921). 
Debts  and  expenses  of  administration  may  be  deducted,  Callahan  v.  Woodbridge, 
171  Mass.  595  (1898);  but  only  such  payments  are  deductible  as  have  been 
allowed  by  the  probate  court.    See  G.  L.  c.  65,  §27,  injra,  page  651. 

4  Hooper  v.  Shaw,  176  Mass.  190  (1900);  Old  Colony  Trust  Co.  v.  Treasurer 
&  Receiver  General,        Mass.         (1921). 

5  Old  Colony  Trust  Co.  v.  Treasurer  &  Receiver  General,       Mass.       (1921). 


638  Taxation  in  Massachusetts 

[G.  L.  c.  65,  §  13 

practice  to  tax  a  legacy  or  share  including  such  property  if  the 
entire  legacy  or  share  was  of  sufficient  value  to  fall  within  the 
statutory  provisions,  but  to  determine  the  amount  of  the  tax  by 
considering  only  the  portion  of  the  legacy  or  share  that  was 
within  the  jurisdiction  of  Massachusetts;  but  it  was  held  that 
the  statutes  did  not  warrant  the  taxation  of  such  a  legacy  or 
share  unless  the  portion  within  the  jurisdiction  of  Massachu- 
setts exceeded  the  statutory  minimum.6  If  a  sufficient  portion 
of  the  estate  of  a  non-resident  is  within  the  jurisdiction  of  Mas- 
sachusetts to  bring  a  proportionate  part  of  any  legacy  or  share 
above  the  statutory  minimum,  such  legacy  or  share  will  be  taxed 
upon  the  proportion  that  the  part  of  the  estate  taxable  in  Mas- 
sachusetts bears  to  the  entire  estate,  and  the  executor  or  admin- 
istrator will  not  be  allowed  to  diminish  the  amount  of  the  tax  by 
devoting  the  property  subject  to  the  jurisdiction  of  this  state 
to  the  payment  of  debts,  exempt  legacies  and  legacies  to  the 
direct  heirs;7  but  it  would  seem  that  a  non-resident  testator  by 
specifically  devising  such  of  his  property  as  is  subject  to  the 
jurisdiction  of  Massachusetts  to  his  direct  heirs  or  to  Massachu- 
setts charities  and  the  remainder  of  his  estate  to  friends  or  col- 
lateral kindred  could  lawfully  effect  a  reduction  of  the  tax  on 
his  estate. 

In  the  case  of  a  present  interest  determinable  upon  death, 
such  as  a  life  estate8  or  an  annuity,  the  present  value  of  the  in- 
terest is  determined  according  to  the  expectancy  of  life  of  the 
person  upon  whose  death  the  determination  of  the  interest  de- 
pends, as  shown  by  the  experience  tables.9  Formerly  it  was 
held  that  the  expectancy  as  of  the  death  of  the  testator  was  to 
govern,  even  if  the  death  of  the  life  tenant  or  annuitant  had  oc- 
curred before  the  tax  was  assessed;10  but  since  1913  it  has  been 
provided  that  in  such  case  the  amount  of  the  tax  should  be  de- 

e  Attorney  General  v.  Barney,  211  Mass.  134  (1912). 

'Kingsbury  v.  Chapin,  196  Mass.  533    (1907). 

8  As  to  what  constitutes  a  life  estate,  it  was  held  in  Dow  v.  Abbott,  197  Mass. 
283  (1908),  that  when  a  piece  of  real  estate  was  devised  to  a  devisee  "to  use  for 
the  term  of  five  years  or  longer"  the  devise  should  be  taxed  as  a  life  estate.  In 
Kemp  v.  Kemp,  223  Mass.  32  (1916),  it  was  held  that  when  a  testator  devised 
the  income  of  all  of  his  estate  to  his  wife  for  life,  with  power  if  the  income  was 
insufficient  to  sell  any  of  the  property  and  spend  the  proceeds,  her  estate  should 
be  taxed  as  a  life  estate. 

B  In  1909  the  "American  Experience  Tables"  were  substituted  for  the  "Ac- 
tuaries Combined  Experience  Tables"  which  had  been  in  use  since  1891. 

"Howe  v.  Howe,  179  Mass.  546  (1901). 


Taxation  of  Legacies  and  Successions 


639 


G.  L.  c.  65,  §  13] 


American  Experience  Tables. — Discounted  at  4  Per  Cent  Compound 

Interest. 

Explanation:  To  find  the  present  worth  of  the  life  estate  of  a  person,  multiply  the  principal  of  the  fund  by  the 
figure  in  column  1  opposite  the  age  of  the  person  at  the  nearest  birthday.  Example:  A,  who  is  26  years,  4  months  old 
at  the  death  of  B,  is  given  by  B's  will  a4ife  estate  in  property  valued  at  $20,000.   Solution:  Opposite  age  26  in  column 

1  is  .7143;  multiply  .7143  X  $20,000  =  $14,286. 

To  find  the  present  worth  of  an  annuity  of  a  given  amount  for  life,  multiply  the  annuity  by  the  figure  in  column 

2  opposite  the  age  at  the  nearest  birthday  of  the  person  receiving  the  annuity.  Example:  A,  who  is  25  years,  7  months 
old  at  death  of  B,  is  given  by  B's  will  an  annuity  of  $800  for  life.  Solution:  Opposite  age  26  in  column  2  is  17.857; 
multiply  17.857  X  $800  -  $14,285.60. 


AGE 

Column  1 
Life 

Estates. 

Column  2 

An- 
nuities. 

AGE. 

Column  1 

Life 
Estates. 

Column  2 

An- 
nuities. 

AGE. 

Column  1 

Life 
Estates. 

Column  2 

An- 
nuities. 

10 

.7766 

19.414 

40 

.6177 

15.443 

70 

.2523 

6.307 

11 

.7737 

19.343 

41 

.6088 

15.220 

71 

.2397 

5.993 

12 

.7708 

19.269 

42 

.5995 

14.988 

72 

.2274 

5.685 

13 

.7677 

19.192 

43 

.5900 

14.749 

73 

.2153 

5.383 

14 

.7645 

19.112 

44 

.5801 

14.502 

74 

.2034 

5.086 

15 

.7611 

19.028 

45 

.5699 

14.248 

75 

.1918 

4.794 

16 

.7577 

18.942 

46 

.5594 

13.985 

76 

.1802 

4.505 

17 

.7540 

18.851 

47 

.5486 

13.714 

77 

.1688 

4.219 

18 

.7503 

18.757 

48 

.5374 

13.436 

78 

.1574 

3.936 

19 

.7464 

18.660 

49 

.5260 

13.151 

79 

.1462 

3.656 

20 

.7423 

18.558 

50 

.5143 

12.858 

80 

.1352 

3.380 

21 

.7388 

18.452 

51 

.5002 

12.559 

81 

.1243 

3.108 

22 

.7337 

18.342 

52 

.4902 

12.255 

82 

.1137 

2.842 

23 

.7291 

18.228 

53 

.4776 

11.944 

83 

.1032 

2.580 

24 

.7244 

18.109 

54 

.4651 

11.628 

84 

.0927 

2.318 

25 

.7194 

17.985 

55 

.4523 

11.307 

85 

.0823 

2.057 

26 

.7143 

17.857 

56 

.4393 

10.982 

86 

.0720 

1.799 

27 

.7089 

17.723 

57 

.4261 

10.653 

87 

.0619 

1.548 

28 

.7034 

17.585 

58 

.4128 

10.321 

88 

.0524 

1.310 

29 

.6976 

17.440 

59 

.3994 

9.985 

89 

.0434 

1.085 

30 

.6916 

17.291 

60 

.3859 

9.648 

90 

.0347 

0.867 

31 

.6854 

17.135 

61 

.3724 

9.309 

91 

.0262 

0.654 

32 

.6789 

16.973 

62 

.3588 

8.969 

92 

.0181 

0.454 

33 

.6722 

16.806 

63 

.3452 

8.630 

93 

.0116 

0.291 

34 

.6653 

16.632 

64 

.3316 

8.290 

94 

.0055 

0.137 

35 

.6580 

16.451 

65 

.3181 

7.952 

95 

36 

.6505 

16.263 

66 

.3046 

7.616 

37 

.6428 

16.069 

67 

.2913 

7.282 

38 

.6347 

15.868 

68 

.2781 

6.952 

39 

.6264 

15.659 

69 

.2651 

6.627 

If  an  annuity  is  payable  semiannually,  add  .250  to  the  annuity  value  in  Column  2. 
If  an  annuity  is  payable  quarterly,  add  .375  to  the  annuity  value  in  Column  2. 
If  an  annuity  is  payable  monthly,  add  .458  to  the  annuity  value  in  Column  2. 


640  Taxation  in  Massachusetts 

[G.L.  c.  65,  §§  13,  14 

pendent  upon  the  amount  of  income  or  annuity  actually  paid.11 
In  the  case  of  a  prese*it  interest  determinable  upon  a  con- 
tingency other  than  death,  as  in  the  case  of  a  will  providing 
for  the  payment  of  income  to  the  testator's  widow  until  her 
death  or  remarriage,  or  in  the  case  of  termination  upon  any  other 
condition  which  cannot  be  valuecl  by  the  experience  tables,  it 
appears  to  be  the  practice  to  tax  the  interest  as  a  life  interest 
and  to  require  payment  of  the  tax  without  deferment. 


12 


Payment  of  Taxes  on  Future  Interests 

Section  14.  Any  person  entitled  to  a  future  interest  in  any 
property  may  pay  the  tax  on  account  of  the  same  at  any  time  before 
such  tax  would  be  due  under  this  chapter,  and  in  such  cases  the  tax 
shall  be  assessed  upon  the  actual  value  of  the  interest  at  the  time  of 
payment,  and  such  value  shall  be  determined  by  the  commissioner  as 
provided  in  this  chapter.  Whenever  it  is  impossible  to  compute  the 
present  value  of  any  interest,  the  commissioner  may,  with  the 
approval  of  the  attorney  general,  effect  such  settlement  of  the  tax  as 
he  shall  deem  to  be  for  the  best  interests  of  the  commonwealth,  and 
payment  of  the  sum  so  agreed  upon  shall  be  a  full  satisfaction  of 
such  tax. 

Under  the  original  inheritance  tax  act  of  1891,  it  was  pro- 
vided that  all  taxes  imposed  by  the  act  should  be  paid  within 
two  years  of  the  date  of  the  bond  of  the  executor  or  adminis- 
trator unless  the  probate  court  specially  ordered  the  date  of  pay- 
ment extended,  and  the  value  of  a  future  interest  was  determined 
by  deducting  from  the  value  of  the  property  the  value  of  the 
preceding  estate,  as  determined  by  the  experience  tables  if  it 
depended  upon  the  duration  of  human  life.  If  a  future  interest 
was  contingent,  and  it  was  uncertain  when  it  would  vest  and 
what  would  be  the  relationship  to  the  testator  of  the  person  who 
eventually  would  receive  it,  the  probate  court  was  necessarily 
bound  to  defer  payment  of  the  tax  until  the  uncertainty  upon 
which  the  amount,  and  under  the  law  which  taxed  only  col- 
lateral inheritances,  liability  to  the  tax  depended.1 

In  1902,  it  was  provided  that  the  tax  upon  a  future  interest 

11  St.  1913,  c.  689,  §1. 

12  Howe  v.  Howe,  179  Mass.  546  (1901);  Moors  v.  Treasurer  &  Receiver 
General,  237  Mass.  254  ( 1921 ) . 

1  Howe  v.  Howe,  179  Mass.  546  ( 1901 ) . 


Taxation  of  Legacies  and  Successions  641 

G.  L.  c.  65,  §  14] 

should  not  be  payable  until  the  person  entitled  came  into  pos- 
session, and  should  be  based  upon  the  actual  value  of  the  prop- 
erty at  the  time  when  the  right  of  possession  accrued.2  The 
statute  however  permitted  the  payment  of  the  tax  at  any  time 
previous  to  the  acquisition  of  possession,  and  this  provision  of 
statute  is  still  in  force.3 

It  may  be  of  great  advantage  to  pay  a  tax  on  a  future  inter- 
est immediately  upon  the  death  of  the  testator,  for  the  tax  is 
based  upon  the  value  of  the  interest  at  the  time  of  payment, 
and  if  the  property  is  likely  to  appreciate  in  value  it  is  wise  to 
pay  the  tax  at  once.  So  also,  if  a  tax  is  based  on  the  present 
value  of  a  future  interest,  the  value  of  the  present  interest  must 
be  deducted  from  the  value  of  the  property  itself  to  determine 
the  value  of  the  future  interest,  whereas,  if  the  tax  is  paid  when 
the  holder  of  the  future  interest  comes  into  possession  and  enjoy- 
ment, the  tax  is  based  upon  the  entire  value  of  the  property. 
If  the  rate  is  the  same  in  either  case,  although  the  tax  will  be 
larger  if  the  payment  is  deferred,  this  disadvantage  will  be 
counterbalanced  by  the  advantage  to  the  taxpayer  in  having 
the  use  and  interest  of  the  money  applicable  to  the  tax  in  the 
interval.  If  however  the  additional  value  to  the  future  estate 
which  comes  to  it  with  the  expiration  of  the  preceding  estate 
subjects  it  to  a  tax  at  a  higher  rate,  there  may  be  a  substantial 
advantage  in  paying  the  tax  in  advance,  even  if  the  property 
itself  is  not  likely  to  appreciate  in  value.4 

Nevertheless,  there  is  no  right  to  the  payment  of  a  tax  on 
a  future  interest  unless  the  value  of  such  interest  can  be  def- 
initely determined  by  the  experience  tables  or  otherwise.  If 
there  is  a  contingency  which  creates  an  uncertainty,  there  is  no 
enforceable  right  to  the  payment  of  the  tax,  even  if  the  person 
presumptively  entitled  to  the  future  interest  offers  to  pay  a  tax 
based  upon  the  assumption  that  the  uncertainty  will  be  deter- 
mined in  such  a  way  as  to  operate  against  him  and  the  amount 
of  which  will  thus  be  at  least  equal  to  and  may  be  more  than 
the  amount  which  would  be  due  if  the  value  of  his  interest 
could  be  accurately  determined.5 

2  St.  1902,  c.  473.   See  G.  L.  c.  65,  §7,  supra,  page  627. 

5  Dow  v.  Abbott,  197  Mass.  283  (1908).  The  provision  is  at  present  con- 
tained in  the  first  sentence  of  section  14. 

4  Moors  v.  Treasurer  &  Receiver  General,  237  Mass.  254   (1921). 
"Mitton  v.  Treasurer  &  Receiver  General,  229  Mass.  140  (1918). 


642  Taxation  in  Massachusetts 

[G.L.  c.  65,  §§  14,15 

The  provision  authorizing  a  settlement  when  it  was  impos- 
sible to  compute  the  value  of  an  interest  first  appeared  in  the 
statutes  in  1903,  but  was  then  limited  to  the  case  of  a  taxable 
devise  dependent  upon  a  contingency  or  the  exercise  of  a  dis- 
cretion. In  1904  settlement  was  authorized  in  the  case  of  a 
devise  of  an  estate  for  life  or  years  to  a  person  of  the  untaxable 
class  with  power  of  appointment  over  the  remainder.  In  1907 
the  provision  for  settlement  was  extended  to  all  future  interests 
and  in  1909  to  all  interests,  future  or  otherwise,  and  the  statute 
as  finally  amended  and  re-enacted  was  made  applicable  to  all 
cases  in  which  the  tax  remained  unpaid  at  the  date  of  its  pas- 
sage.6 The  settlement  of  a  tax  under  this  provision  lies  wholly 
in  the  discretion  of  the  taxing  officials  and  will  not  be  enforced  by 
mandamus,  no  matter  how  reasonable  an  offer  a  taxpayer  may 
have  made  and  how  unreasonable  the  position  of  the  commis- 
sioner in  refusing  to  accept  it.7 

If  the  person  entitled  to  a  present  interest  in  the  income  of 
property  pays  a  tax  on  such  interest  and  afterward  receives  a 
share  of  the  principal  by  reason  of  being  alive  when  the  time 
for  distribution  arrives,  the  value  of  his  interest  in  the  income 
and  of  his  share  of  the  principal  when  distributed  should  be 
added  together  to  determine  the  rate  at  which  they  should  be 
taxed,  and  if  they  are  taxable  at  a  higher  rate  than  that  at  which 
the  interest  of  the  legatee  in  the  income  which  was  payable  at 
the  death  of  the  testator  was  assessed,  the  legatee  must  pay  an 
additional  tax  upon  his  interest  in  the  income.8 

Deposit  or  Bond  for  Payment  of  Tax  on  Future  Interests 

Section  15.  In  case  of  a  bequest  or  grant  of  personal  estate  made 
or  intended  to  take  effect  in  possession  or  enjoyment  after  the  death 
of  the  grantor,  to  take  effect  in  possession  or  come  into  actual  enjoy- 
ment after  the  expiration  of  one  or  more  life  estates  or  a  term  of  years, 
whether  conditioned  upon  the  happening  of  a  contingency,  dependent 
upon  the  exercise  of  a  discretion,  subject  to  a  power  of  appointment, 
or  otherwise,  the  executor,  administrator  or  grantee  may  deposit  with 
the  state  treasurer  a  sum  of  money  sufficient  in  the  opinion  of  the 
commissioner  to  pay  all  taxes  which  may  become  due  upon  such 

•  St.  1909,  c.  527,  §10,  enacted  June  19,  1909. 

TMitton  v.  Treasurer  &  Receiver  General,  229  Mass.  140   (1918). 

8  Moors  v.  Treasurer  &  Receiver  General,  237  Mass.  254  (1921). 


Taxation  of  Legacies  and  Successions  643 

G.L.c.  65,  §§15,  16] 

bequest  or  grant,  and  the  persons  having  the  right  to  the  use  or 
income  of  such  personal  estate  shall  be  entitled  to  receive  from  the 
commonwealth  interest  at  the  rate  of  two  and  one  half  per  cent  per 
annum  upon  such  deposit,  and  when  said  tax  shall  become  due  the 
treasurer  shall  repay  to  the  persons  entitled  thereto  the  difference  be- 
tween the  tax  certified  and  the  amount  deposited;  or  any  executor, 
administrator,  trustee  or  grantee,  or  any  person  interested  in  such 
bequest  or  grant  may  give  bond  to  a  judge  of  the  probate  court  having 
jurisdiction  of  the  estate  of  the  decedent,  in  such  amount  and  with 
such  sureties  as  said  court  may  approve,  conditioned  that  the  obligor 
shall  notify  the  commissioner  when  said  tax  becomes  due  and  shall 
then  pay  the  same  to  the  commonwealth. 

In  1902  authority  for  deferring  payment  of  the  tax  on  a  fu- 
ture interest  was  for  the  first  time  given  by  the  legislature,1  but 
in  the  following  year  it  was  provided  that  the  tax  on  any  future 
interest  in  personal  property  should  be  payable  without  defer- 
ment unless  the  person  beneficially  entitled  to  the  interest  gave 
bond  for  the  payment  of  the  tax  within  one  year  of  the  death  of 
the  testator.2  While  this  statute  was  in  force,  unless  the  legatee 
gave  the  bond  within  the  specified  period,  the  executor  or 
administrator  was  bound  to  pay  the  tax.3 

In  1907  the  deposit  of  money  was  made  permissible,  as  well 
as  a  bond,  but  the  deposit  or  bond  ceased  to  be  a  condition  pre- 
cedent to  the  deferment  of  the  tax;4  but  the  statutes  authoriz- 
ing the  deposit  or  bond  are  still  in  force,  and  the  making  of 
the  deposit  or  the  giving  of  a  bond  is  still  of  advantage  in  mak- 
ing the  allowance  of  the  final  accounts  of  the  executor  or  ad- 
ministrator possible.5 

Excessive  Compensation  of  Executor  Taxable 

Section  16.  If  a  testator  gives,  bequeaths  or  devises  to  his 
executors  or  trustees  any  property  otherwise  liable  to  the  tax  im- 
posed by  this  chapter  in  lieu  of  their  compensation,  the  value  thereof 
in  excess  of  reasonable  compensation,  as  determined  by  the  probate 
court  upon  the  application  of  any  interested  party  or  of  the  com- 
missioner, shall  be  subject  to  this  chapter. 

1  See  G.  L.  c.  65,  §§7,  14,  supra,  pages  627,  640. 
3  St.  1903,  c.  276. 

3  Dow  v.  Abbott,  197  Mass.  283  ( 1908) . 

4  St.  1907,  c.  563,  §5. 

5  See  G.  L.  c.  65,  §23,  infra,  page  648. 


644  Taxation  in  Massachusetts 

[G.  L.  c.  65,  §§  16,17 

This  statute  has  received  no  modification  since  it  was  first 
enacted  in  1891  other  than  reduction  to  its  present  concise  phrase- 
ology in  the  Revised  Laws  and  the  substitution  in  1907  of  the 
tax  commissioner  for  the  treasurer  and  receiver  general  as  the 
party  to  make  application  to  the  probate  court. 

The  ordinary  compensation  of  an  executor,  administrator 
or  trustee  is  not  subject  to  the  inheritance  tax,  being  deducted  as 
one  of  the  expenses  of  administration,  and  it  is  only  a  bequest 
in  excess  of  reasonable  compensation  that  is  taxable,  and  then 
only  as  to  the  amount  of  the  excess. 

Executor  Liable  for  Tax 

Section  17.  An  executor,  administor  or  trustee  holding  property 
subject  to  the  tax  imposed  by  this  chapter  shall  deduct  the  tax  there- 
from or  collect  it  from  the  legatee  or  person  entitled  to  said  property ; 
and  he  shall  not  deliver  property  or  a  specific  legacy  subject  to  said 
tax  until  he  has  collected  the  tax  thereon.  An  executor  or  adminis- 
trator shall  collect  taxes  due  upon  land  passing  by  inheritance  or 
will  which  is  subject  to  said  tax  from  the  heirs  or  devisees  entitled 
thereto,  and  he  may  be  authorized  to  sell  said  land,  in  the  manner 
prescribed  by  section  twenty-one,  if  they  refuse  or  neglect  to  pay 
said  tax. 

The  first  part  of  this  section  appeared  in  the  original  act 
of  1891  and  the  last  part  first  appeared  in  1901.  The  two  statutes 
were  consolidated  in  the  Revised  Laws  and  appeared  in  the 
direct  inheritance  law  of  1907,  in  the  codification  of  1909  and 
in  the  General  Laws  in  the  same  phraseology  as  in  the  Revised 
Laws.  It  is  plain  that  under  this  statute  it  is  the  duty  of  the 
executor,  administrator  or  trustee  in  the  case  of  articles  of 
personal  property  specifically  devised  to  collect  the  tax  before 
delivering  the  article  to  the  legatee,  and  that  in  the  case  of  a 
specific  legacy  in  common  to  two  or  more  persons  the  tax  is  to 
be  collected  from  each  in  proportion  to  his  interest.1 

It  is  to  be  noted  that  in  collecting  the  inheritance  tax  the 
commonwealth  deals  directly  with  the  executor  or  adminis- 
trator,2 and  has  no  direct  relations  with  the  persons  who  even- 
tually receive  the  property  of  a  decedent  except  in  the  case  of  a 

1  Ops.  Attorney  General,  30. 

"Dow  v.  Abbott,  197  Mass.  283  (1908). 


Taxation  op  Legacies  and  Successions  645 

G.L.c.  65,  §§17,  18] 

gift  made  in  the  life  of  the  decedent,3  or  when  payment  of  the 
tax  is  deferred  until  after  the  execirtor  or  administrator  has  gone 
out  of  office,4  or  when  the  tax  is  collected  by  enforcing  the  statu- 
tory lien  upon  the  property  of  the  decedent.5  It  is  the  executor 
or  administrator  who  must  pay  the  tax  and  the  statutes  furnish 
him  ample  means  of  raising  money  from  the  estate  in  whatever 
form  it  may  be  to  satisfy  the  tax.6  If  he  is  in  doubt  about  the 
liability  of  the  estate  to  taxation  he  may  apply  to  the  probate 
court  for  instructions;7  but  if  he  turns  over  the  property  of 
the  estate  to  the  persons  entitled  without  paying  a  tax  which 
was  then  due  he  is  personally  liable  for  the  tax.8  On  the  other 
hand  the  persons  beneficially  interested  in  the  estate  have  no 
opportunity  to  contest  with  the  commonwealth  the  liability  of 
the  estate  to  taxation;9  and  if  an  executor  or  administrator 
pays  a  tax  claimed  by  the  commonwealth  without  an  adjudica- 
tion of  court,  he  is  personally  liable  to  the  heir  or  legatee  if  it 
is  subsequently  held  that  the  tax  was  not  legally  due.10 


Legacy  Charged  on  Real  Estate 

Section  18.  If  a  legacy  subject  to  said  tax  is  charged  upon  or 
payable  out  of  real  estate,  the  heir  or  devisee,  before  paying  said 
legacy,  shall  deduct  said  tax  therefrom  and  pay  it  to  the  executor,  ad- 
ministrator or  trustee,  and  the  tax  shall  remain  a  lien  upon  said  real 
estate  until  it  is  paid.  Payment  thereof  may  be  enforced  by  the 
executor,  administrator  or  trustee  in  the  same  manner  as  the  payment 
of  the  legacy  itself  could  be  enforced. 

This  section  has  received  no  alteration  since  it  was  first 
enacted  except  a  slight  modification  of  phraseology  without 
change  of  meaning.  Payment  of  a  legacy  charged  upon  or  pay- 
able out  of  real  estate  may  be  enforced  by  action  at  law  or  bill 
in  equity  and  the  same  remedies  are  open  to  the  executor  to 
enforce  payment  of  the  tax. 

3  G.  L.  c.  65,  §7,  supra,  page  627. 

4  G.  L.  c.  65,  §7,  supra,  page  627;  §14,  supra,  page  640. 

5  G.  L.  c.  65,  §5,  supra,  page  626,  and  §31,  infra,  page  656. 
aG.  L.  c.  65,  §§18,  21,  infra,  pages  645,  646. 

7  G.  L.  c.  65,  §30,  infra,  page  654. 

8  G.  L.  c.  65,  §30,  infra,  page  654. 
9G.  L.  c.  65,  §27,  infra,  page  651. 
"Essex  v.  Brooks,  164  Mass.  79  (1895). 


646  Taxation  in  Massachusetts 

[G.  L.  c.  65,  §§  19,  20 

Provision  for  Payment  of  Tax  Not  Taxable 

Section  19.  When  provision  is  made  by  any  will  or  other  in- 
strument for  payment  of  the  legacy  or  succession  tax  upon  any  gift 
thereby  made  out  of  any  property  other  than  that  so  given,  no  tax 
shall  be  chargeable  upon  the  sum  to  be  applied  in  payment  of  such 
tax. 

Prior  to  1907  it  was  contended  by  the  treasury  department 
that  a  direction  in  a  will  to  pay  the  tax  on  a  legacy  out  of  the 
estate  amounted  to  an  increase  of  the  legacy  by  the  amount  of 
the  tax,  and  it  was  the  practice  to  assess  a  tax  on  a  sum  which 
after  the  tax  was  deducted  would  leave  the  amount  of  the  legacy. 
This  practice  was  overturned  by  the  statute  quoted  above. 


Repayment  of  Tax  on  Property  Returned 

Section  20.  If  a  person  who  has  paid  to  the  estate  of  a  deceased 
person,  or  to  the  commonwealth,  any  tax  or  part  of  a  tax  imposed 
on  such  estate  by  this  chapter,  afterward  refunds  to  the  estate  any  of 
the  property  upon  which  such  tax  was  paid,  or,  in  the  case  of  a  tax 
or  part  of  a  tax  paid  to  the  estate  of  the  deceased,  or  paid  to  the 
commonwealth  on  account  of  such  estate,  if  it  is  judicially  deter- 
mined that  the  whole  or  any  part  of  such  tax  ought  not  to  have  been 
paid,  such  tax,  or  the  due  proportion  thereof,  shall  be  repaid  to  him 
by  the  executor,  administrator  or  trustee. 

This  statute  has  not  been  materially  modified  since  the  year 
after  its  original  enactment,  when  an  error  in  wording  which 
appeared  in  the  statute  in  its  original  form  was  corrected.  The 
statute  contemplates  the  payment  of  a  tax  by  the  devisee,  legatee 
or  heir  to  the  executor  or  administrator  and  applies  to  all  taxes 
under  the  statute  and  not  merely  to  those  referred  to  in  the 
three  preceding  sections.  A  person  receiving  property  under  the 
will  or  by  intestate  succession  may  be  obliged  to  repay  or  re- 
turn it  to  meet  the  demands  of  creditors  of  the  estate,  or  of 
children  of  the  testator  unintentionally  omitted  in  the  case  of 
a  will,  or  for  similar  reasons,  and  if  under  such  circumstances  he 
has  previously  paid  the  tax  he  is  of  course  entitled  to  have  it 
returned  to  him. 


Taxation  of  Legacies  and  Successions  647 

G.L.  c.  65,  §§21,  22] 

Sale  of  Real  Estate  for  Payment  of  Tax 

Section  21.  The  probate  court  may  authorize  executors,  ad- 
ministrators and  trustees  to  sell  the  real  estate  of  a  decedent  for  the 
payment  of  said  tax  in  the  same  manner  as  it  may  authorize  them  to 
sell  real  estate  for  the  payment  of  debts. 

This  essential  provision  for  the  enforcement  of  the  inheri- 
tance tax  law  has  remained  in  the  statutes  since  the  original 
enactment  of  the  inheritance  tax  law  in  1891  without  modifica- 
tion, except  a  slight  alteration  in  verbiage  when  the  Revised 
Laws  were  enacted. 

Under  this  section  payment  of  the  tax  by  the  executor  is  not 
a  condition  precedent  to  the  maintenance  of  the  petition.1 
Such  a  petition  need  not  contain  all  the  allegations  required  in 
the  case  of  a  petition  to  sell  real  estate  for  payment  of  debts.2 
It  is  sufficient  if  it  alleges  the  death  of  the  decedent  and  the  de- 
vise or  descent  of  his  real  estate,  contains  a  description  of  the 
real  estate  and  further  states  that  an  inheritance  tax  is  due 
thereon  and  that  the  respondent  has  taken  possession  of  the 
real  estate  and  refuses  to  pay  the  tax.3 

Inventory  and  Appraisal 

Section  22.  A  full  and  complete  inventory  and  appraisal  on  oath 
of  every  estate  shall  be  filed  in  the  probate  court  or  with  the  com- 
missioner by  the  executor,  administrator  or  trustee  within  three 
months  after  his  appointment,  and  such  inventory  shall  contain  a  com- 
plete list  of  all  assets  within  the  knowledge  of  said  executor,  adminis- 
trator or  trustee.  If  he  neglects  or  refuses  to  file  such  an  inventory 
and  appraisal  he  shall  be  liable  to  a  penalty  of  not  more  than  one 
thousand  dollars. 

The  original  statute  required  the  filing  of  inventories  of  only 
such  estates  as  were  in  whole  or  in  part  subject  to  the  tax;  but 
it  was  the  opinion  of  the  attorney-general  that  if  any  part  of 
the  estate  was  subject  to  the  tax  the  executor  or  administrator 
was  bound  to  file  an  inventory  of  the  whole,1  and  that  the  treas- 

xLane  v.  Richardson,  234  Mass.  403  (1920). 
3  Under  G.  L.  c.  202,  §1. 

8  Lane  v.  Richardson,  234  Mass.  403  (1920). 
1  1  Opinions  of  Attorney  General,  40. 


648  Taxation  in  Massachusetts 

[G.  L.  c.  65,  §§  22,  23,  24 

urer  had  no  power  to  dispense  with  this  requirement.2  The 
obligation  of  the  register  of  probate  to  notify  the  tax  commis- 
sioner was  added  in  1895,  and  in  the  direct  inheritance  tax 
act  of  1907  the  obligation  of  filing  an  inventory  was  imposed  in 
the  case  of  every  estate.  In  1909  further  provision  was  made 
that  the  inventory  should  be  "full  and  complete"  and  "contain 
a  complete  list  of  all  assets  within  the  knowledge  of  the  said 
executor,  administrator  or  trustee."  The  obligation  to  file  an 
inventory  exists  in  every  case,  whether  there  is  any  liability  to 
taxation  or  not.  The  inventory  affords  the  commissioner  the 
opportunity  to  determine  whether  the  estate  is  liable  to  the  tax. 

Non-Payment  of  Tax  as  Affecting  Allowance  of  Probate 

Accounts 

Section  23.  Except  as  provided  in  the  following  section,  no  final 
account  of  an  executor,  administrator  or  trustee  shall  be  allowed  by 
the  probate  court  unless  such  account  shows,  and  the  judge  of  said 
court  finds,  that  all  taxes  imposed  by  this  chapter  upon  any  property 
or  interest  therein  belonging  to  the  estate  to  be  settled  by  said  account 
and  already  payable  have  been  paid,  and  that  all  taxes  which  may  be- 
come due  on  said  estate  have  been  paid  or  settled  as  hereinbefore 
provided,  or  that  the  payment  thereof  to  the  commonwealth  is  secured 
by  bond  or  deposit  or  by  lien  on  real  estate.  The  certificate  of  the 
commissioner  and  the  receipt  of  the  state  treasurer  for  the  amount  of 
the  tax  therein  certified  shall  be  conclusive  as  to  the  payment  of  the 
tax,  to  the  extent  of  said  certification. 

Section  24.  The  fact  that  an  estate  may  later  become  subject 
to  a  tax  imposed  by  this  chapter,  or  that  a  tax  hereby  imposed  is  due 
and  the  amount  thereof  cannot  be  ascertained,  shall  not  prevent  the 
allowance  of  the  final  account  of  the  executor,  administrator  or  trustee 
thereof,  if  it  appears  that  all  taxes  imposed  by  this  chapter  for  which 
such  estate  is  liable,  which  are  already  payable  and  the  amount  of 
which  can  be  ascertained,  have  been  paid,  and  that  such  property  or 
interest  therein  has  been  transferred  to  a  trustee  appointed  by  a  pro- 
bate court  of  the  commonwealth  who  has  given  bond,  with  sufficient 
sureties,  in  such  a  sum  as  to  insure  the  payment  of  all  taxes  which  are 
or  may  become  due  on  said  estate,  unless  such  trustee  is  exempted 
from  giving  sureties  by  the  probate  court  appointing  him;  and  such 

2  1  Opinions  of  Attorney  General,  52. 


Taxation  op  Legacies  and  Successions  649 

G.  L.  c.  65,  §§  24,  25] 

trustee  shall  be  liable  for  such  taxes  and  the  interest  thereon  in  the 
same  manner  and  to  the  same  amount  as  if  he  had  been  the  executor, 
administrator  or  trustee  originally  liable  therefor,  and  the  property 
received  by  him  shall  be  subject  to  a  lien  for  said  taxes  and  interest 
until  the  same  are  paid. 

Section  twenty-three  has  remained  in  substantially  the  same 
form  since  its  original  enactment,  except  for  the  changes  in 
phraseology  necessary  to  conform  to  the  other  changes  in  the 
inheritance  tax  laws.  Section  twenty-four  was  first  enacted  in 
1910.  The  allowance  of  a  final  account  by  the  probate  court 
and  the  issuance  of  a  decree  for  distribution  when  the  common- 
wealth is  not  a  party  is  not  a  bar  to  the  subsequent  collection 
of  a  tax  which  is  due  by  operation  of  the  statutes;  the  allow- 
ance of  an  account  under  such  circumstances  is  unauthorized 
by  statute  and  if  not  absolutely  void  is  at  least  not  binding  on 
the  commonwealth.1  Conversely,  the  failure  of  an  executor  or 
administrator  to  file  an  account  and  have  it  allowed  does  not  do 
away  with  the  requirement  resting  on  the  commissioner  to  notify 
the  executor  or  administrator  of  the  amount  of  the  tax,  or  estop 
the  executor  or  administrator  from  contending  that  the  tax  is 
invalid.2 

Determination  of  Value 
Section  25.  The  value  of  the  property  upon  which  the  tax  is 
computed  shall  be  determined  by  the  commissioner  and  notified  by 
him  to  the  persons  by  whom  the  tax  is  payable,  and  such  determina- 
tion shall  be  final  unless  the  value  so  determined  shall  be  reduced  by 
proceedings  as  herein  provided.  At  any  time  within  three  months 
after  such  determination  the  probate  court  shall,  on  application  of  any 
party  interested  in  the  succession,  or  of  the  executor,  administrator  or 
trustee,  appoint  one  or  three  disinterested  appraisers,  who,  first  being 
sworn,  shall  appraise  such  property  at  its  actual  market  value  as  of  the 
day  of  the  death  of  the  decedent,  and  shall  make  return  thereof  to 
said  court.  Such  return,  when  accepted  by  said  court,  shall  be  final, 
except  that  any  party  aggrieved  by  such  appraisal  shall  have  an 
appeal  upon  matters  of  law.  One  half  of  the  fees  of  said  appraisers, 
as  determined  by  the  judge  of  said  court,  shall  be  paid  by  the  com- 
monwealth, and  one  half  by  the  other  parties  to  the  proceeding. 

1  Attorney  General  v.  Stone,  209  Mass.  186  (1911)  j  Attorney  General  v.  Raf- 
ferty,  209  Mass.  321  (1911). 

2  Attorney  General  v.  Roche,  219  Mass.  601   (1914). 


650  Taxation  in  Massachusetts 

[G.  L.  c.  65,  §  26 

Section  26.  At  any  time  within  three  months  after  the  date  of 

the  determination  of  value  of  any  estate  made  by  the  commissioner 

under  the  preceding  section,  the  commissioner  may,  at  the  request 

or  with  the  consent  of  the  persons  by  whom  the  tax  is  payable,  alter 

such  determination  of  value.     If  any  such  alteration  is  made,  the 

commissioner  shall  notify  the  persons  by  whom  the  tax  is  payable 

of  the  alteration,  and  the  period  within  which  application  may  be 

made  for  the  appointment  of  an  appraiser  or  appraisers  as  provided 

by  said  section  shall  be  three  months  from  the  date  of  said  alteration 

of  value  by  the  commissioner.    In  all  proceedings  in  the  probate  court 

under  this  or  the  preceding  section,  or  by  an  appraiser  or  appraisers 

appointed  by  the  court  under  either  section,  the  commisioner  shall 

receive  notice  thereof  and  may  be  heard. 

The  date  as  of  when  valuation  is  made  has  already  been  dis- 
cussed.1 The  original  statute  provided  that  the  valuation  should 
be  made  by  the  probate  court;  but  the  treasurer  or  any  person 
interested  in  the  estate  might  apply  for  the  appointment  of  ap- 
praisers whose  return  when  accepted  by  the  court  should  be  final. 
The  appraisers'  fees  were  to  be  paid  by  the  treasurer.  In  1905 
the  statute  was  amended  by  a  provision  that  half  of  the  ap- 
praisers' fees  should  be  paid  by  the  treasurer  and  half  by  the 
other  party  to  the  preceeding ;  and  that  the  court  might  appoint 
a  single  appraiser.  In  1907  the  power  of  originally  determining 
the  value  was  given  to  the  tax  commissioner,  and  the  executor, 
administrator  or  trustee,  as  well  as  the  parties  interested  in  the 
succession,  were  given  authority  to  apply  for  an  appraisal.  The 
provisions  for  an  alteration  of  the  determination  of  value,  now 
found  in  section  twenty-six,  were  first  enacted  in  1912. 

The  provisions  of  section  twenty-five  furnish  the  exclusive 
remedy  for  a  person  aggrieved  by  an  excessive  valuation  placed 
by  the  commissioner  upon  the  property  with  respect  to  the  pass- 
ing of  which  the  tax  is  assessed.  The  remedy  of  petition  for 
abatement  under  section  twenty-seven  is  available  only  when  the 
tax  is  in  whole  or  in  part  illegally  assessed,  and  has  no  applica^ 
tion  to  an  excessive  valuation  of  property  the  passing  of  which  is 
subject  to  the  tax.2  If  no  appeal  is  taken,  the  valuation  of  the 
commissioner  is  final.3 

1  G.  L.  c.  65,  §13,  supra,  page  636. 

2  Attorney  General  v.  Skehill,  217  Mass.  364  (1914). 

8  Attorney  General  v.  Roche,  219  Mass.  601   (1914).   The  administrator  may, 


Taxation  op  Legacies  and  Successions  651 

G.  L.  c.  65,  §§  26,  27] 

An  executor  or  administrator  cannot  apply  under  section 
twenty-five  for  a  re-appraisal  of  only  part  of  the  property  of 
the  decedent.  He  cannot  accept  the  valuation  of  the  commis- 
sioner with  respect  to  items  of  property  which  the  commissioner 
has  appraised  at  too  low  a  value  and  invoke  the  remedy  pro- 
vided by  the  statute  with  respect  to  items  which  the  commis- 
sioner has  over-valued.  If  the  tax  is  just,  considering  the  prop- 
erty of  the  decedent  in  its  entirety,  the  executor  or  administrator 
cannot  complain  if  one  or  more  items  were  overvalued.4 

Assessment,  Certification  and  Abatement 

Section  27.  The  commissioner  shall  determine  the  amount  of 
tax  due  and  payable  upon  any  estate  or  part  thereof,  and  shall  certify 
the  amount  so  due  and  payable  to  the  state  treasurer  and  to  the 
persons  by  whom  the  tax  is  payable ;  but  in  the  determination  of  the 
amount  of  any  tax  under  this  chapter  the  commissioner  shall  not  be 
required  to  consider  any  payments  on  account  of  debts  or  expenses 
of  administration  which  have  not  been  allowed  by  the  probate  court 
having  jurisdiction  of  said  estate.  Payment  of  the  amount  so  certified 
shall  be  a  discharge  of  the  tax.  An  executor,  administrator,  trustee, 
grantee,  donee  or  survivor  aggrieved  by  any  determination  of  the  com- 
missioner may,  within  one  year  after  the  payment  of  any  such  tax, 
apply  by  a  petition  in  equity  to  the  probate  court  having  jurisdiction 
of  the  estate  of  the  decedent  for  the  abatement  of  the  tax  or  any  part 
thereof,  and  if  the  court  adjudges  that  the  tax  or  any  part  thereof 
was  wrongly  exacted  it  shall  order  an  abatement  of  such  part  thereof 
as  was  assessed  without  authority  of  law.  Upon  a  final  decision  order- 
ing an  abatement  of  any  part  of  such  a  tax,  the  treasurer  shall  pay 
the  amount  adjudged  to  have  been  illegally  exacted,  with  interest, 
without  any  further  act  or  resolve  making  appropriation  therefor. 

This  statute  originated  in  1907,  and  prior  to  its  enactment 
there  was  no  provision  for  an  authoritative  statement  by  a  rep- 
resentative of  the  commonwealth  of  the  amount  of  tax  claimed  to 


however,  show  in  abatement  proceedings  that  the  value  of  the  estate  was  re- 
duced by  the  payment  of  debts.  Attorney  General  v.  Laycock,  221  Mass.  146 
(1915). 

*  Whitney  v.  Tax  Commissioner,  234  Mass.  188  (1919).  In  this  case  the 
court  expressly  left  open  the  question  of  the  necessary  scope  of  an  application 
for  reappraisal  by  a  devisee  or  legatee  who  is  interested  only  in  some  particular 
property  less  than  the  entire  estate. 


652  Taxation  in  Massachusetts 

[G.  L.  c.  65,  §  27 

be  due  equivalent  in  any  way  to  the  assessment  of  a  local  tax 
by  the  assessors.  The  statute  automatically  assessed  the  tax, 
and  an  executor  or  administrator  who  was  in  doubt  as  to  the 
liability  of  a  portion  of  the  estate  to  the  tax,  but  was  willing 
with  the  assent  of  the  legatees  to  pay  all  that  the  common- 
wealth claimed,  had  no  means  of  securing  a  binding  statement 
from  the  commonwealth  without  applying  for  instructions  from 
the  probate  court.  The  statute  quoted  above  remedies  this 
situation  to  a  certain  extent;  but  nevertheless  an  estate  that  is 
liable  to  the  tax  may  be  made  to  pay  it  at  any  time  that  the 
commissioner  certifies  the  tax  is  due  and  no  such  means  of  es- 
cape by  lapse  of  time  is  afforded  as  is  the  case  in  the  assess- 
ment of  local  taxes,  which  cannot  be  imposed  after  a  certain  day 
in  the  year  for  which  they  are  assessed. 

The  second  portion  of  the  section  also  tends  to  bring  the 
inheritance  tax  more  in  harmony  with  the  general  tax  system 
of  the  commonwealth  by  giving  the  representative  of  the  estate 
of  a  deceased  person  or  the  grantee  of  property  under  a  gift  inter 
vivos  subject  to  the  tax  or  a  joint  owner  who  takes  by  survivor- 
ship, who  is  aggrieved  by  a  determination  of  the  commissioner 
in  regard  to  the  amount  of  the  tax,  an  opportunity  to  apply  for 
abatement.  As  the  law  stands  now  a  person  who  is  aggrieved 
by  the  valuation  for  the  purpose  of  the  tax  of  property  which 
is  to  pass  to  him  may  apply  for  a  re-valuation  by  appraisers, 
with  appeal  on  matters  of  law ;  and  if  he  is  aggrieved  in  any  other 
way  as  by  the  subjection  of  property  to  the  tax  which  he  claims 
is  exempt,  the  representative  of  the  estate  may  apply  for  an 
abatement  to  the  probate  court. 

A  distinction  is  thus  to  be  noted  between  section  twenty-five 
and  section  twenty-seven.  A  legatee  or  devisee  or  a  distributee 
in  case  of  an  intestate  estate  may  apply  for  a  reappraisal  under 
section  twenty-five  as  a  "party  interested  in  the  succession." 
This  right  is  essential  to  a  reasonable  protection  of  the  rights 
of  such  parties  because  the  determination  of  the  commissioner 
is  final  upon  valuation  unless  application  for  re-appraisal  is 
made,  and  if  such  parties  had  no  right  to  be  heard  upon  the  re- 
appraisal they  would  be  deprived  of  their  property  without  a 
hearing.  Upon  abatement  for  any  cause  other  than  over- 
valuation there  is  no  provision  for  a  petition  by  the  persons  who 
are  to  receive  the  estate  of  the  decedent  and  who  thus  ultimately 


Taxation  of  Legacies  and  Successions  653 

G.  L.  c.  65,  §§  27,  28] 

pay  the  tax,  but  the  certification  of  the  commissioner  is  not  con- 
clusive, so,  if  the  question  is  not  judicially  determined  by  pro- 
ceedings in  the  probate  court,  the  legatees  and  distributees  retain 
their  common  law  right  of  suing  the  executor  or  administrator  for 
their  legacies  or  distributive  shares  without  deduction,  thus 
raising  the  question  of  the  legality  of  the  tax. 

The  right  to  apply  for  a  re-appraisal  under  section  twenty- 
five  must  also  be  carefully  distinguished  from  the  right  to  ap- 
ply for  an  abatement  under  section  twenty-seven.  Re-appraisal 
is  the  only  remedy  for  over- valuation  of  the  property  the  passing 
of  which  is  subject  to  the  tax,  and  a  petition  for  abatement 
will  not  lie  merely  to  correct  an  error  in  valuation.1  Petition 
for  abatement  is  the  remedy  in  case  of  an  assessment  illegal  in 
whole  or  in  part.2  Failure  on  the  part  of  the  commissioner  to 
allow  a  proper  deduction  for  debts  of  the  estate  is  an  illegality 
which  may  be  made  the  ground  of  a  petition  for  abatement.3 

If  no  appeal  is  taken  from  the  valuation  of  the  commissioner, 
he  determines  or  computes  the  amount  of  the  tax  and  certifies 
the  tax  to  the  treasurer  and  receiver  general  for  collection. 
But  he  must  also  notify  the  person  by  whom  the  tax  is  to  be  paid, 
and  the  tax  is  not  payable  until  such  notice  is  given.  As  the 
legislature  has  not  prescribed  the  kind  of  notice,  it  may  be  per- 
sonal or  by  mail.  If  the  taxpayer  lives  in  a  city,  the  notice 
should  if  possible  be  directed  to  the  street  and  number  of  his 
residence.    A  notice  to  his  attorney  is  not  sufficient.4 

Examination  on  Oath  of  Persons  Having  Information 

Section  28.  For  the  purpose  of  assessing  taxes  imposed  by  this 
chapter,  the  commissioner  may  summon  and  examine  on  oath  any 
person  supposed  to  know  or  have  means  of  knowing  any  material 
fact  touching  the  subject  of  such  assessment.  The  said  examination 
may  be  reduced  to  writing,  and  false  swearing  therein  shall  be  deemed 
perjury  and  be  punishable  as  such.  A  justice  of  the  superior  court, 
upon  application  of  the  commissioner,  may  compel  the  attendance  of 

'Attorney-General  v.  Skehill,  217  Mass.  364  (1914). 

2  Attorney-General  v.  Roche,  219  Mass.  601  (1914);  Attorney-General  v. 
Laycock,  221  Mass.  146  (1915)  ;  Whitney  v.  Tax  Commissioner,  234  Mass.  188, 
191  (1919).  See  also  G.  L.  c.  58,  §27,  supra,  page  181,  as  to  petitioning  the 
commissioner  for  abatement. 

s  Attorney  General  v.  Laycock,  221  Mass.  146  (1915). 

*  Attorney  General  v.  Roche,  219  Mass.  601  (1914/. 


654  Taxation  in  Massachusetts 

[G.  L.  c.  65,  §§  28-30 
such  witnesses  and  the  giving  of  such  testimony  before  the  commis- 
sioner in  the  same  manner  and  to  the  same  extent  as  before  said 
court. 

The  foregoing  section  was  first  enacted  in  1914.  It  is  essen- 
tial to  an  enforcement  of  the  tax  upon  gifts  inter  vivos  intended 
to  take  effect  in  possession  or  enjoyment  after  the  death  of  the 
donor,  or  made  in  contemplation  of  death,  and  upon  the  ac- 
quisition of  property  by  survivorship,  since  the  executor  or 
administrator  in  his  official  capacity  would  have  no  knowledge 
of  such  transactions  and  might  well  have  no  actual  knowledge 
of  them. 

Although  the  commissioner  is  authorized  to  summon  wit- 
nesses, no  penalty  is  imposed  for  disregard  of  the  summons, 
and  the  commissioner  can  enforce  attendance  only  by  proceeding 
through  the  court. 

Dooming  on  Refusal  of  Information 

Section  29.  Whenever  an  executor,  administrator,  trustee,  or  any 
person  liable  to  taxation  under  this  chapter,  refuses  or  neglects  to 
furnish  to  the  commissioner  any  information  which  in  the  opinion 
of  the  commissioner  is  necessary  to  the  proper  computation  of  taxes 
payable  by  such  executor,  administrator,  trustee  or  person,  after 
having  been  requested  so  to  do,  the  commissioner  shall  certify 
such  taxes  at  the.  highest  rate  at  which  they  could  in  any  event  be 
computed. 

Jurisdiction  of  the  Probate  Court 

Section  30.  The  probate  court  having  jurisdiction  of  the  settle- 
ment of  the  estate  of  the  decedent  shall,  subject  to  appeal  as  in  other 
cases,  hear  and  determine  all  questions  relative  to  the  tax  imposed  by 
this  chapter,  or  by  the  corresponding  provisions  of  earlier  laws,  and 
the  state  treasurer  shall  represent  the  commonwealth  in  any  such  pro- 
ceedings. If  the  court  finds  that  any  tax  remains  due,  it  shall  order 
the  executor,  administrator  or  trustee  to  pay  the  same,  with  interest 
and  costs,  and  execution  shall  be  awarded  against  the  goods  and  estate 
of  the  deceased  h\  the  hands  of  the  executor,  administrator  or  trustee, 
or,  if  it  appears  that  there  are  no  such  goods  or  estate  in  his  hands, 
against  the  goods  and  estate  of  the  executor,  administrator  or  trustee, 
as  if  for  his  own  debt ;  but  the  administrators,  executors,  trustees  and 


Taxation  of  Legacies  and  Successions  655 

G.  L.  c.  65,  §  30] 

grantees  mentioned  in  this  chapter  shall  be  personally  liable  only  for 
such  taxes  as  shall  be  payable  while  they  continue  in  the  said  offices 
or  have  title  as  such  grantees  respectively. 

The  first  sentence  of  this  section  is  substantially  the  statute 
as  it  appeared  in  1891  and  in  the  Revised  Laws.  An  amend- 
ment in  1903  related  to  the  discharge  of  the  lien  and  to  secur- 
ing the  payment  of  a  tax  due  on  account  of  the  passing  of 
real  estate,  and  its  provisions  have  been  superseded.  The  sec- 
ond sentence  originated  in  1907  and  provides  a  more  definite 
method  for  carrying  out  the  orders  of  the  court.  It  has  been 
held  that  the  probate  court  has  jurisdiction  of  a  petition  brought 
by  an  executor  of  a  foreign  will  proved  in  this  commonwealth 
for  instructions  upon  the  question  whether  he  is  liable  to  pay  a 
tax  upon  the  property,  real  and  personal,  of  the  testator  found 
in  this  commonwealth,1  and  of  a  petition  filed  by  the  treasurer 
to  determine  whether  a  tax  is  payable  and  the  amount  thereof.2 
It  was  held  in  1895  that  the  jurisdiction  of  the  probate  court  is 
not  exclusive,  and  that  a  legatee  may  sue  the  executor  for  his 
legacy  at  common  law  and  thus  raise  the  question  whether  any 
tax  should  be  deducted.3  As  there  is  no  method  provided  for  a 
legatee  or  distributee  to  contest  the  tax  (except  for  excessive 
valuation)  in  any  other  way  than  by  an  action  against  the  exe- 
cutor or  administrator,  if  the  executor  or  administrator  pays  the 
tax  without  asking  the  probate  court  for  instructions  or  apply- 
ing for  an  abatement,  and  there  is  no  requirement  that  the  cer- 
tification of  the  commissioner  be  final  and  conclusive  if  it  is  not 
questioned  in  the  manner  provided  by  statute,  it  would  seem  that 
the  decision  referred  to  is  still  good  law,  although  an  executor 
or  administrator  would  doubtless  not  often  put  himself  in  a  po- 
sition which  would  subject  him  to  liability  in  such  an  action. 

Although  the  statute  provides  that  the  state  treasurer  shall 
represent  the  commonwealth  in  proceedings  under  this  section, 
it  is  not  essential  to  the  jurisdicion  of  the  court  that  he  be  made 
a  party,  and  the  failure  to  make  him  a  party  when  he  has  not 
asked  to  be  admitted  as  such  is  not  ground  for  reversing  a 
judgment  rendered  under  this  section.4 

1  Callahan  v.  Woodbridge,  171  Mass.  595  (1898). 

2  Bradford  v.  Storey,  189  Mass.  104  (1905). 
"Essex  v.  Brooks,  164  Mass.  79  (1895). 

4  Lane  v.  Richardson,  234  Mass.  403  (1920). 


656  Taxation  in  Massachusetts 

[G.L.  c.  65,  §§31,  32 

Enforcement  of  Lien  on  Real  Estate 

Section  31.  Upon  petition  of  the  state  treasurer  the  probate  court 
shall,  after  such  notice  to  the  owners  of  any  real  estate  or  separate 
parcel  thereof  as  said  court  shall  order,  determine  the  amount  of  taxes 
imposed  by  this  chapter  and  by  corresponding  provisions  of  earlier 
laws  which  have  become  payable,  and  of  interest  on  said  taxes,  for 
which  such  real  estate  or  separate  parcel  thereof  is  charged  with  a 
lien.  After  such  determination  said  treasurer  may  collect  said  taxes 
and  interest  by  sale  in  the  manner  provided  by  chapter  sixty  for  the 
collection  of  taxes  by  sale  by  a  collector  of  taxes,  so  far  as  applicable. 

From  the  first  enactment  of  the  inheritance  tax  law  in  1891 
it  was  open  to  the  state  treasurer  to  petition  the  probate  court 
to  determine  whether  a  tax  was  payable,  and,  if  payable,  what 
the  amount  should  be ;  but  there  was  no  provision  authorizing  the 
probate  court  to  enforce  payment  of  the  amount  determined  to 
be  due.1  There  was  also  provision  that  the  taxes  should  consti- 
tute a  lien  until  paid,2  but  no  specific  authority  for  enforcing 
the  lien  by  foreclosure  or  sale.  In  1910  however  proceedings  for 
enforcing  the  lien  upon  real  estate  in  the  same  manner  as  liens 
for  local  taxes  are  enforced  were  authorized. 

Proceedings  for  the  Recovery  of  Unpaid  Taxes 

Section  32.  The  treasurer  shall  commence  proceedings  for  the 
recovery  of  any  of  the  taxes  imposed  by  this  chapter  or  by  corre- 
sponding provisions  of  earlier  laws  within  six  months  after  the  same 
become  payable;  and  also  whenever  the  judge  of  a  probate  court 
certifies  to  him  that  the  final  account  of  an  executor,  administrator 
or  trustee  has  been  filed  in  such  court,  and  that  the  settlement  of  the 
estate  is  delayed  because  of  the  non-payment  of  said  tax.  The  pro- 
bate court  shall  so  certify  upon  the  application  of  any  heir,  legatee  or 
other  person  interested  therein.  Whenever  the  circumstances  of  a  case 
require,  the  probate  court  may  extend  the  time  for  payment  of  said 
tax,  with  or  without  interest. 

Odinarily  the  collection  of  inheritance  taxes  takes  care  of 
itself.  If  the  validity  or  amount  of  the  tax  is  not  in  dispute,  the 
executor  or  administrator  sets  aside  funds  sufficient  to  pay  the 

Bradford  v.  Storey,  189  Mass.  104   (1905). 
2  See  G.  L.  c.  65,  §9,  supra,  page  633. 


Taxation  of  Legacies  and  Successions  657 

G.  L.  c.  65,  §§  32,  33] 

tax  before  he  distributes  the  estate;  and,  if  any  question  about 
the  tax  has  arisen,  he  applies  to  the. probate  court  for  instruc- 
tions and  acts  in  accordance  with  the  decision  of  the  court.  If 
the  payment  of  the  tax  is  postponed  under  the  statute,  the  com- 
monwealth is  protected  by  deposit  or  bond.1  The  statute  quoted 
above  is  in  substance  that  originally  enacted  in  1891,  except 
that  it  was  then  provided  that  the  treasurer  should  "bring  suit" 
and  the  wording  appeared  in  the  Revised  Laws  "commence  an 
action."  Just  what  form  of  "suit,"  "action"  or  "proceedings" 
was  contemplated  has  never  been  determined  by  the  supreme 
court,  but  the  wording  of  the  earlier  statutes  at  least  would  seem 
to  imply  an  action  of  contract  in  the  superior  court.  The  follow- 
ing section,  however,  first  enacted  in  1909,  makes  clear  the  forms 
of  action  to  be  employed,  although  such  remedies  are  not  neces- 
sarily exclusive.2  It  has  been  held  that  the  provision  as  to  time 
is  only  directory,  and  that  the  treasurer  is  not  limited  to  a 
period  within  six  months  after  the  tax  has  become  payable,3 
and  further  that  the  obligation  to  pay  the  tax  can  be  terminated 
only  by  payment  and  that  neither  the  general  statute  of  limita- 
tions nor  the  special  statute  applicable  to  actions  against  execu- 
tors and  administrators  can  be  invoked  as  a  bar  to  a  proceeding 
to  recover  an  inheritance  tax.4 

The  concluding  clause  of  the  section  quoted  above  authorizes 
the  deferment  of  the  payment  of  the  tax  when  it  cannot  be  as- 
certained who  the  ultimate  beneficiaries  will  be  and  what  rela- 
tionship they  will  bear  to  the  decedent,5  and  no  settlement  has 
been  made  with  the  commissioner.6 

Remedies  for  Collection  of  Taxes 

Section  33.  Taxes  imposed  by  this  chapter  and  by  corresponding 
provisions  of  earlier  laws  may  be  recovered  by  the  state  treasurer  in 
an  action  of  contract  brought  in  the  name  of  the  commonwealth,  or 
by  an  information  in  equity  brought  in  the  supreme  judicial  court  by 
the  attorney  general  at  the  relation  of  the  treasurer.  In  a  proceeding 
under  this  section  for  the  collection  of  taxes  imposed  by  this  chapter, 

1  G.  L.  c.  65,  §15,  supra,  page  642. 

3  See  decisions  under  G.  L.  c.  60,  §35,  supra,  page  342. 

*  Howe  v.  Howe,  179  Mass.  546  ( 1901 ) . 

♦Bradford  v.  Storey,  189  Mass.  104  (1905). 

•Howe  v.  Howe,  179  Mass.  546  (1901). 

•Under  G.  L.  c.  65,  §14,  supra,  page  640. 


658  Taxation  in  Massachusetts 

[G.  L.  c.  65,  §  33 
the  determination  by  the  commissioner  under  section  twenty -seven  of 
the  amount  of  the  tax  shall  be  final  as  to  such  amount ;  but  an  executor, 
administrator,  trustee,  grantee,  donee  or  survivor  may  show,  in  any 
proceeding  brought  against  him  under  this  section,  any  facts  which 
would  entitle  him  to  an  abatement  under  section  twenty-seven,  and  a 
judgment  or  decree  shall  be  entered  for  the  amount  of  the  tax  so 
determined  less  the  amount  proved  to  have  been  assessed  without 
authority  of  law,  together  with  interest  and  costs.  If  upon  an  in- 
formation brought  hereunder  the  court  shall  find  that  any  tax  remains 
due,  it  shall  order  the  executor,  administrator,  trustee,  grantee,  donee 
or  survivor  to  pay  the  same,  with  interest  and  costs,  and  may  award 
execution  therefor  in  the  manner  and  form  provided  in  section  thirty. 

The  foregoing  section  was  first  enacted  in  1909;  whether  it 
was  enacted  for  the  purpose  of  defining  the  proceedings  which 
the  treasurer  was  authorized  by  the  preceding  section  to  insti- 
tute, or  for  providing  additional  remedies,  is  not  entirely  clear. 
In  proceedings  brought  under  this  section  it  is  not  open  to  the 
defendant  to  contest  the  valuation  by  the  commissioner  of  the 
property  the  passing  of  which  is  subject  to  the  tax;  the  only 
remedy  of  a  person  aggrieved  by  an  overvaluation  is  to  apply 
for  a  re-appraisal  under  section  twenty-five.1  The  defendant 
may  however  set  up  as  a  defense  that  the  tax  was  in  whole  or 
in  part  illegally  assessed.2 

SUMMARY 

There  are  now  four  distinct  methods  provided  for  collecting 
inheritance  taxes,  namely: 

(1)  Petition  to  the  probate  court  by  the  commissioner  to 
determine  whether  a  tax  is  due  and  the  amount  thereof.3 

(2)  Action  of  contract  in  the  name  of  the  commonwealth.4 

(3)  Information  in  equity  brought  in  the  supreme  judicial 
court  by  the  attorney  general.5 

1  Thus  in  such  proceedings  it  is  not  even  open  to  the  defendant  to  show  that 
the  true  value  of  the  property  was  so  small  that  no  inheritance  tax  whatever 
was  due.   Attorney-General  v.  Skehill,  217  Mass.  364  (1914). 

2  Thus  it  is  competent  for  the  defendant  to  show  that  by  the  payment  of 
debts  the  assets  of  the  estate  were  reduced  to  such  a  point  that  no  tax  was  pay- 
able.   Attorney  General  v.  Laycock,  221  Mass.  146  (1915). 

3  G.  L.  c.  65,  §30,  supra,  page  654. 
4G.  L.  c.  65,  §33,  supra,  page  657. 
5G.  L.  c.  65,  §33,  supra,  page  657. 


Taxation  op  Legacies  and  Successions  659 

G.  L.  c.  65,  §  33] 

In  all  of  the  above  execution  issues  against  the  goods  of  the 
decedent  in  the  hands  of  the  executor,  administrator  or  trustee; 
but  if  there  are  no  such  goods  the  executor,  administrator  or 
trustee  is  personally  responsible  for  taxes  payable  while  he  was 
in  office. 

(4)  Sale  of  real  estate  for  non-payment  of  taxes  assessed  on 
account  of  the  same.6 

In  addition  to  these  direct  methods,  pressure  may  be  indi- 
rectly applied  in  the  following  manner : 

(5)  Enforcement  of  lien  on  personal  property  until  it  is 
sold  or  disposed  of  for  value.7 

(6)  Prohibition  of  allowance  of  final  account  unless  tax  on 
future  estate  is  secured  by  deposit  or  bond.8 

(7)  Prohibition  of  delivery  of  property  by  executor  or  ad- 
ministrator to  legatee  or  heir  until  he  has  collected  the  tax 
thereon.9 

(8)  Sale  of  land  by  executor  or  administrator  if  heirs  or 
devisees  refuse  or  neglect  to  pay  the  tax,  or  the  personal  property 
is  insufficient.10 

(9)  Enforcement  of  tax  on  legacy  charged  upon  real  estate 
in  the  same  manner  as  payment  of  the  legacy  could  be  enforced/1 

(10)  Liability  of  domestic  corporation  for  the  tax  in  ac- 
tion of  contract  if  it  transfers  shares  of  non-resident  decedent 
before  the  tax  is  paid.12 

(11)  Withholding  of  license  to  receive  assets  of  non-resident 
decedent  until  tax  has  been  paid.13 

(12)  Liability  of  person  for  tax  in  action  of  contract  if  he 
delivers  assets  of  non-resident  decedent  before  tax  has  been 
paid.14 

(13)  Application  by  commissioner  for  appointment  of  ad- 
ministrator if  no  will  is  offered  for  probate  or  application  for 
administration  made  within  four  months.15 

eG.  L.  c.  65,  §31,  supra,   page  656. 
'G.  L.  c.  65,  §9,  supra,  page  633. 
8G.  L.  c.  65,  §23,  supra,   page  648. 
8G.  L.  c.  65,  §17,  supra,  page  644. 
10  G.  L.  c.  65,  §21,  supra,   page  647. 
11 G.  L.  c.  65,  §18,  supra,   page  645.  ' 

12  G.  L.  c.  65,  §10,  supra,   page  634. 

13  G.  L.  c.  §10,  supra,   page  634. 

18  G.  L.  c.  65,  §10,  supra,  page  634. 
15  G.  L.  c.  193,  §3,  infra,  page  747, 


660  Taxation  in  Massachusetts 

[G.  L.  c.  65,  §§  33-36  inc. 

(14)  Withholding  allowance  of  final  probate  account  until 
the  tax  is  paid.16 

Recovery  of  Penalties  and  Forfeitures 

Section  34.  Penalties  and  forfeitures  incurred  under  this  chapter 
may  be  recovered  by  the  state  treasurer  in  an  action  of  contract 
brought  in  the  name  of  the  commonwealth,  or  by  an  information  in 
equity  brought  in  the  supreme  judicial  court  by  the  attorney  general 
at  the  relation  of  the  state  treasurer. 

Papers  Not  Open  to  Public  Inspection 

Section  35.  Papers,  copies  of  papers,  affidavits,  statements, 
letters  and  other  information  and  evidence  filed  with  the  commis- 
sioner in  connection  with  the  assessment  of  taxes  upon  legacies  and 
successions,  except  inventories  filed  with  him  under  section  twenty- 
two,  shall  be  open  only  to  the  inspection  of  persons  charged  or  likely 
to  become  charged  with  the  payment  of  taxes  in  the  case  in  which 
such  paper,  copy,  affidavit,  statement,  letter  or  other  information  or 
evidence  is  filed,  or  their  representatives,  and  to  the  commissioner, 
his  deputies,  assistants  and  clerks  and  such  other  officers  of  the  com- 
monwealth and  other  persons  as  may,  in  the  performance  of  their 
duties,  have  occasion  to  inspect  the  same  for  the  purpose  of  assessing 
or  collecting  taxes.  Nothing  in  this  section  shall  be  construed  as 
limiting  the  duties  imposed  upon  the  commissioner  by  section  three 
of  chapter  fifty-eight  or  as  prohibiting  the  use  of  such  papers,  copies, 
affidavits,  statements,  letters  and  other  information  and  evidence  in 
legal  proceedings  involving  the  assessment,  collection  or  abatement  of 
taxes. 

The  Tax  Not  Retrospective 

Section  36.  This  chapter  shall  apply  only  to  property  or  interests 
therein  passing  or  accruing  upon  the  death  of  persons  dying  on  or 
after  May  fourth,  nineteen  hundred  and  twenty,  and  as  to  all  prop- 
erty and  interests  therein  passing  or  accruing  upon  the  death  of 
persons  who  have  died  prior  to  said  date  the  laws  theretofore 
applicable  shall  remain  in  force ;  but  so  much  of  this  chapter  as  relates 
to  property  or  interests  therein  passing  by  deed,  grant  or  gift  com- 
pleted inter  vivos  in  contemplation  of  death  shall  apply  only  to  such 

18  G.  L.  c.  65,  §23,  supra,  page  648. 


Taxation  of  Legacies  and  Successions  661 

G.  L.  c.  65,  §  36] 

deeds,  grants  or  gifts  made  on  or  after  May  twenty-seventh,  nineteen 
hundred  and  twenty. 

The  original  collateral  inheritance  tax  was  not  enforced 
against  the  estates  of  persons  dying  before  its  enactment,  and 
the  early  modifications  of  the  exemptions  based  upon  the  size 
of  the  estate  or  of  individual  bequests  were  not  retrospective.1 
The  radical  change  made  in  1902  which  postponed  the  valuation 
of  future  estates  and  the  payment  of  the  tax  thereon  applied 
however  to  all  cases  in  which  the  tax  had  not  been  paid.2  The 
direct  inheritance  tax  statute  of  1907  applied  only  to  the  es- 
tates of  persons  dying  on  or  after  the  date  it  went  into  effect, 
namely,  September  1,  1907,  and  while  it  repealed  all  previous 
statutes  relating  to  the  inheritance  tax  it  left  them  in  force  so 
far  as  they  applied  to  the  estates  of  persons  dying  before  the 
designated  date.3 

In  1909  a  statute  was  enacted  providing  for  the  application 
of  the  direct  inheritance  tax  to  the  passing  of  property  by  the 
exercise  or  non-exercise  of  powers  of  appointment  created  prior 
to  September  1,  1907,  and  this  statute  in  terms  repealed  so  much 
of  the  statute  of  1907  that  provided  that  that  act  should  not 
have  a  retroactive  effect  as  was  inconsistent  therewith.4 

The  additional  methods  for  collecting  inheritance  taxes  pro- 
vided by  statute  in  1909  and  1910  were  in  terms  made  applicable 
to  all  unpaid  taxes,  whether  imposed  under  the  provisions  of  the 
statute  of  1907  or  of  earlier  laws.5 

The  general  increase  in  rates  imposed  in  1912  was  not  re- 
troactive, and  applied  only  to  the  estates  of  persons  dying  after 
May  29,  1912,  and  the  increase  and  change  in  the  method  of 
taxation  adopted  in  1916  applied  only  to  the  estates  of  persons 

*St.  1895,  c.  307;  Howe  v.  Howe,  119  Mass.  546  (1901)  ;  St.  1901,  c.  297. 

2  St.  1902,  c.  473;  Stevens  v.  Bradford,  185  Mass.  439  (1904);  Attorney- 
General  v.  Stone,  209  Mass.  186  (1911). 

3  St.  1907,  c.  563,  §26.  The  main  purpose  of  this  section  was  to  establish 
a  definite  line  between  the  cases  that  should  be  governed  by  the  new  act,  and 
those  which  would  remain  subject  to  the  laws  previously  in  force.  When  an  in- 
dividual prior  to  1907  in  good  faith  conveyed  property  to  trustees  to  pay  the 
income  to  himself  for  life  and  on  his  death  to  pay  the  income  to  his  children  and 
died  after  1907  the  interest  of  the  children  was  held  not  to  be  subject  to  the  tax. 
Welch  v.  Treasurer  &  Receiver  General,  217  Mass.  348  (1914).  The  statute  (St. 
1909,  c.  268)  which  placed  an  adoptive  parent  upon  an  equality  with  a  natural 
parent  did  not  otherwise  change  the  law  by  making  the  1907  statute  retroactive. 
New  England  Trust  Co.  v.  White,  224  Mass.  332  (1916). 

1  St.  1909,  c.  527,  §8. 

8  G.  L.  c.  65,  §33,  supra,  page  657. 


662  Taxation  in  Massachusetts 

[G.  L.  c.  65,  §  36 

dying  after  May  25,  1916.6  The  rates  of  taxation  have  not  been 
modified  since  then,  except  in  the  case  of  the  temporary  addi- 
tional taxes,7  and  the  new  provisions  which  went  into  effect 
on  May  4,  1920  were  those  under  which  the  commonwealth  re- 
sumed the  taxation  of  the  orooerty  of  non-residents.8 


6  See  G.  L.  c.  65,  §1,  supra,  page  608. 

7  Infra,  page  759. 

8  See  G.  L.  c.  65,  §1,  What  Property  is  Subject  to  the  Tax,  supra,  page  616. 


CHAPTER    66 

PUBLIC   RECORDS 

Chapter  sixty-six  contains  the  requirements  as  to  the  paper 
and  ink  to  be  used  on  public  records  and  the  custody  of  such 
records.  The  valuation  and  assessment  lists  of  assessors  are 
public  records,  and  such  provisions  apply  to  them.' 


1  Commonwealth  v.  Segee,  218  Mass.  501  (1914), 

663 


CHAPTER    70 

SCHOOL  FUNDS  AND   OTHER   STATE  AID   FOR 

PUBLIC   SCHOOLS 

State  Aid  from  the  Income  Tax 

Section  1.  The  state  treasurer  shall  annually,  on  or  before 
November  fifteenth,  pay  to  the  several  towns  from  the  proceeds  of  the 
tax  on  incomes,  which  shall  be  available  therefor  without  appropria- 
tion, the  sums  required  for  the  purposes  of  Part  I  of  this  chapter,  as 
part  reimbursement  for  salaries  paid  to  teachers,  supervisors,  prin- 
cipals, assistant  superintendents  and  superintendents  for  services  in 
the  public  day  schools  rendered  during  the  year  ending  the  preceding 
June  thirtieth. 

Section  2.  For  each  such  person  employed  for  full  time  service 
for  the  entire  school  year,  such  reimbursement  shall  be  as  follows : 

(1)  Two  hundred  dollars  for  every  person  so  employed  who  re- 
ceived as  salary  not  less  than  eight  hundred  and  fifty  dollars  and  who 
is  a  graduate  of  an  approved  normal  school  or  college  and  had  taught 
on  full  time  at  least  two  years  previous  to  said  year  or  whose  prepara- 
tion and  teaching  experience  are  accepted  as  equivalent. 

(2)  One  hundred  and  fifty  dollars  for  every  person  so  employed 
not  included  in  paragraph  (1)  who  received  as  salary  not  less  than 
seven  hundred  and  fifty  dollars-  and  (a)  has  satisfactorily  completed 
one  year  of  professional  training  in  an  approved  normal  school  or 
teachers'  training  school,  and  had  taught  on  full  time  at  least  three 
years  previous  to  said  year;  or  (&)  is  a  graduate  of  an  approved  nor- 
mal school  or  college,  and  had  taught  on  full  time  for  at  least  one  year 
previous  to  said  year;  or  (c)  whose  preparation  and  teaching  experi- 
ence are  accepted  as  equivalent. 

(3)  One  hundred  dollars  for  every  person  so  employed  and  not 
included  in  paragraphs  (1)  or  (2)  who  received  as  salary  not  less  than 
six  hundred  and  fifty  dollars. 

Section  3.  For  every  such  person  employed  for  less  than  full 
time  service  for  the  school  year,  but  otherwise  described  in  the 
preceding  section  and  receiving  a  proportionate  salary,  said  reim- 

664 


State  Aid  for  Public  Schools  665 

G.  L.  c.  70,  §§  3-6  inc.] 

bursement  shall  in  each  case  be  in  such  proportion  to  the  reimburse- 
ment provided  for  in  said  section  as  his  service  bears  to  full  time 
service.  No  town  in  a  superintendency  union  shall  receive  under  this 
chapter  reimbursement  for  the  part  time  employment  of  a  super- 
intendent if  entitled  to  reimbursement  therefor  under  section  sixty- 
five  of  chapter  seventy-one. 

Section  4.  Every  town  whose  valuation,  including  omitted  assess- 
ments, for  the  year  next  preceding  the  date  of  payment,  when  divided 
by  the  net  average  membership  of  its  public  day  schools  as  defined  in 
section  five  for  the  year  ending  on  the  next  preceding  June  thirtieth, 
yields  a  quotient  less  than  forty-five  hundred  dollars  shall,  for  each 
person  for  whom  it  received  reimbursement  under  section  two,  re- 
ceive supplementary  reimbursement  as  follows : 

(1)  Three  hundred  dollars  if  said  quotient  is  less  than  two 
thousand. 

(2)  Two  hundred  and  fifty  dollars  if  said  quotient  is  less  than 
twenty-five  hundred  but  not  less  than  two  thousand. 

(3)  Two  hundred  dollars  if  said  quotient  is  less  than  three  thou- 
sand but  not  less  than  thirty -five  hundred. 

(4)  One  hundred  and  fifty  dollars  if  said  quotient  is  less  than 
thirty-five  hundred  but  not  less  than  three  thousand. 

(5)  One  hundred  dollars  if  said  quotient  is  less  than  four  thou- 
sand but  not  less  than  thirty-five  hundred. 

(6)  Fifty  dollars  if  said  quotient  is  less  than  forty-five  hundred 
but  not  less  than  four  thousand. 

For  each  person  for  whom  any  such  town  received  proportionate 
reimbursement  under  section  three  it  shall  in  each  case  receive  as 
supplementary  reimbursement  the  same  proportion  of  the  sums  named 
herein  for  full  time  service. 

Section  5.  For  the  purposes  of  section  four  the  net  average  mem- 
bership of  the  public  day  schools  of  a  town  for  any  school  year  shall 
be  the  average  membership  for  such  year  as  shown  by  the  school 
registers,  increased  by  the  number  of  pupils  resident  therein  whose 
tuition  in  the  public  schools  of  another  town,  for  not  less  than  half 
such  year,  the  town  has  paid,  decreased  by  the  number  of  non-resident 
pupils  attending  its  schools  for  not  less  than  half  such  year. 

Section  6.  No  town  shall  be  entitled  to  reimbursement  under 
Part  I  of  this  chapter  on  account  of  salaries  paid  to  teachers  whose 
employment  in  state-aided  vocational  schools  or  departments,  con- 


666  Taxation  in  Massachusetts 

[G.L.c.70,§§6,7 
tinuation  schools  or  Americanization  classes  entitle  the  town  to  state 
reimbursement.  For  every  teacher  in  a  practice  school  connected  with 
a  state  normal  school,  part  or  all  of  whose  salary  is  paid  or  reim- 
bursed by  the  commonwealth,  the  town's  reimbursement  under  this 
chapter  shall  be  proportionate  to  the  part  thereof  paid  by  it. 

Section  7.  Every  superintendent  of  schools  shall  file  with  the 
commissioner  of  education,  not  later  than  August  first  in  each  year, 
a  sworn  statement,  upon  blanks  prepared  by  the  commissioner,  con- 
taining the  data  necessary  to  determine  the  amounts  payable  under 
Part  I  of  this  chapter.  Before  filing  such  statement,  the  superin- 
tendent shall  submit  it  to  the  chairman  of  the  school  committee,  who 
shall  countersign  it  on  oath,  if,  after  examination,  he  finds  it  correct. 
The  commissioner  shall  cause  such  statements  to  be  examined,  and 
shall  transmit  them  to  the  state  treasurer,  with  a  tabulation  showing 
the  amount  due  each  town. 

These  sections  were  enacted  in  1919,  the  same  year  when 
the  permanent  provision  for  the  income  tax  was  adopted.1 
There  is  distributed  in  accordance  with  the  provisions  of  these 
sections  about  four  million  dollars  annually,  and  this  sum  is 
taken  from  the  income  tax  each  year  before  the  distribution 
provided  in  chapter  fifty-eight  is  put  into  effect.  The  effect  of 
this  statute  is  not  to  increase  the  aggregate  amount  of  income 
tax  distributed  to  the  cities  and  towns  each  year,  but  to  modify 
the  method  of  distribution,  so  that  some  towns  receive  more 
and  others  less  than  they  would  receive  if  the  entire  tax  were  dis- 
tributed in  accordance  with  the  method  established  by  chapter 
fifty-eight;  in  general,  small  towns  in  remote  sections  of  the 
state,  in  which  there  is  a  relatively  small  amount  of  taxable 
property  benefit  at  the  expense  of  the  manufacturing  cities. 
There  is  no  obligation  that  the  money  received  under  these 
sections  be  applied  to  educational  purposes;  it  is  paid  into  the 
treasury  of  the  town  and  may  be  appropriated  for  any  munici- 
pal purpose. 

The  constitutionality  of  these  sections  has  been  assailed,  on 
the  ground  that  they  authorize  the  levy  of  a  tax  upon  a  particu- 
lar class  of  property  for  a  particular  public  use  from  which  the 
property  taxed  derives  no  special  and  peculiar  benefit;  but  this 
objection  was  not  sustained.2 

'G.  L.  c.  58,  §18. 

2  Knights  v.  Treasurer  &  Receiver  General,  237  Mass.  493   (1921). 


CHAPTER    79 

EMINENT  DOMAIN 

General  Provisions  as  to  Betterments 

It  is  provided  in  section  one  that  an  order  for  the  taking  of 
land  by  eminent  domain  shall,  in  case  the  improvement  for  which 
the  taking  is  made  is  one  for  which  betterments  may  be  assessed, 
state  whether  betterments  are  to  be  assessed  therefor.  It  is  pro- 
vided in  section  nine  that  when  injury  is  caused  to  real  estate 
in  pursuance  of  a  formal  vote  or  order  of  a  board  of  public 
officers  although  there  is  no  taking,  and  the  owner  of  the  real 
estate  is  under  the  law  entitled  to  damages,  if  the  order  estab- 
lishes a  public  improvement  for  which  betterments  may  be  as- 
sessed, it  shall  state  whether  betterments  are  to  be  assessed 
therefor. 

In  section  twelve  it  is  provided  that,  in  assessing  damages, 
benefits  shall  be  set  off  unless  it  was  stated  in  the  order  of  taking, 
or  in  the  order  establishing  the  improvement,  that  betterments 
were  to  be  assessed. 

Settlement  and  Assumption  of  Betterments 

Section  39.  Whenever  damages  may  be  recovered  under  this 
chapter,  the  body  politic  or  corporate  liable  for  such  damages  may 
after  the  right  to  such  damages  has  become  vested  effect  such  settle- 
ment of  the  damages  with  the  person  entitled  thereto  as  it  may  deem 
to  be  for  its  best  interests,  and  it  may  as  one  of  the  terms  of  the 
settlement  of  a  claim  for  damages  growing  out  of  the  proceedings  in 
respect  of  which  betterments  have  been  or  are  to  be  assessed  agree 
in  writing  with  the  owner  of  the  land  assessed  to  assume  such  better- 
ments. Such  body  politic  or  corporate  may  after  the  right  to  such 
damages  has  become  vested  offer  in  writing  to  pay  to  the  person  en- 
titled to  receive  the  same  the  amount  which  it  is  willing  to  pay  in 
settlement  thereof,  with  interest  thereon,  together  with  taxable  costs 
if  a  petition  for  the  assessment  of  such  damages  is  pending.  If  an 
award  of  damages  has  previously  been  made,  the  offer  shall  not  J)e 

667 


668  Taxation  in  Massachusetts 

[G.  L.  c.  79,  §  39 
of  a  less  amount  than  such  award.  Acceptance  thereof  may  be  either 
in  full  satisfaction  of  all  damages  so  sustained,  or  as  a  payment  pro 
tanto  without  prejudice  to  any  right  to  have  the  remainder  thereof 
assessed  by  the  appropriate  tribunal.  After  notice  of  such  offer, 
made  as  aforesaid,  or  payment  of  the  amount  thereof,  no  interest  shall 
be  recovered,  except  upon  such  amount  of  damages  as  shall,  upon  final 
adjudication,  be  in  excess  of  the  amount  of  said  offer ;  provided,  that 
all  taxable  costs  accruing  subsequently  to  said  offer  shall  be  recover- 
able by  the  petitioner  in  all  cases,  except  as  provided  in  section  thirty- 
eight. 

Members  of  a  board  which  is  authorized  to  levy  a  better- 
ment assessment  are  not  agents  of  the  city  or  town  but  public 
officers,  and  they  cannot  lawfully  delegate  their  duty  to  make 
the  assessment  or  submit  the  amount  of  the  assessment  to  ar- 
bitration, or  give  up  by  contract  any  valuable  rights  of  the 
city  or  town  with  respect  to  the  levy  of  betterments  except  in 
the  manner  provided  by  statute.1  They  may  however  consider 
an  offer  of  favorable  terms  as  to  land  damages  in  laying  out  a 
street,  and  although  they  cannot  bind  the  city  or  town  by  an 
agreement  not  to  assess  betterments  or  to  assume  the  better- 
ments except  in  accordance  with  the  statute,  their  acts  taken  in 
connection  with  acts  of  the  other  municipal  authorities  may 
constitute  the  acceptance  of  an  offer  which  obligates  the  city 
or  town  to  assume  the  betterments.2 

The  statute  uses  very  broad  language  regarding  the  terms 
upon  which  damages  may  be  released,  and  is  held  to  authorize 
any  reasonable  arrangement  in  regard  to  the  construction  of  the 
way  and  the  effect  of  its  construction,  direct  and  incidental, 
upon  the  abutting  property,  not  fraudulent  or  corrupt  or  re- 
sulting in  an  unfair  and  unjust  distribution  of  the  cost  of  the 
improvement.3 


1Boylston  Market  Association  v.  Boston,  113  Mass.  528  (1873)  ;  Somerville 
V.  Dickerman,  127  Mass.  272  (1879)  ;  Aspinwall  v.  Boston,  191  Mass.  441  (1906)  ; 
Whitcomb  v.  Boston,  192  Mass.  211   (1906). 

2Bartlett  v.  Boston,  182  Mass.  460  (1903)  ;  Aspinwall  v.  Boston,  191  Mass. 
441  (1906),  and  see  also  Averill  v.  Boston,  193  Masa.  488  (1907)  ;  Boston  Water 
Power  Co.  v.  Boston,  194  Mass.  571  (1907)  ;  Burrage  v.  Boston,  198  Mass.  580 
(1908). 

3  Atkinson  v.  Newton,  169  Mass.  240  (1897)  ;  Bell  v.  Newton,  183  Mass.  481 
(1903). 


CHAPTER    80 
BETTERMENTS 

Assessment  of  Betterments 

Section  1.  Whenever  a  limited  and  determinable  area  receives 
benefit  or  advantage,  other  than  the  general  advantage  to  the  com- 
munity, from  a  public  improvement  made  by  or  in  accordance  with 
the  formal  vote  or  order  of  a  board  of  officers  of  the  commonwealth  or 
of  a  county,  city,  town  or  district,  and  such  order  states  that  better- 
ments are  to  be  assessed  for  the  improvement,  such  board  shall  within 
six  months  after  the  completion  of  the  improvement  determine  the 
value  of  such  benefit  or  advantage  to  the  land  within  such  area  and 
assess  upon  each  parcel  thereof  a  proportionate  share  of  the  cost  of 
such  improvement,  and  shall  include  in  such  cost  all  damages  awarded 
therefor  under  chapter  seventy-nine;  but  no  such  assessment  shall 
exceed  the  amount  of  such  adjudged  benefit  or  advantage. 

Although  the  assessment  of  betterments  for  the  laying  out 
of  public  ways  and  for  some  other  classes  of  public  improvements 
has  been  employed  as  a  means  of  raising  the  necessary  funds 
to  construct  such  improvements  in  sporadic  instances  in  Massa- 
chusetts since  very  early  times,1  it  is  only  within  the  last  eighty 
years  that  special  assessments  in  their  modern  form,  imposed  by 
administrative  officers  upon  the  land  specially  benefited  by  a 
public  improvement  and  paid  directly  to  the  public  authorities, 
have  become  part  of  the  settled  policy  of  the  commonwealth. 
Sewers  were  not  public  property  until  1841,  and  assessments  pay- 
able to  the  city  or  town  were  not  authorized  by  statute  until 
that  year.  The  first  general  statute  authorizing  sidewalk 
assessments  was  enacted  in  1858.  In  January,  1866,  the 
supreme  judicial  court  upheld  the  constitutionality  of  an 
act  passed  in  the  preceding  year  authorizing  the  assessment 
of  betterments  for  the  widening  and  laying  out  of  cer- 
tain specified  streets  in  Boston,2  and  in  the  same  year  a  better- 

1  Supra,  Part  I,  §64,  and  see  as  to  the  constitutional  limitations  upon  the 
levying  of  betterment  assessments,  Part  I,  §§65  to  72  inc. 
'Dorgan  v.  Boston,  12  Allen  223  (1866). 

669 


670  Taxation  in  Massachusetts 

[G.  L.  c.  80,  §  1 

ment  act  applicable  to  all  streets  in  Boston  was  enacted.     In 

1867  the  statute  was  extended  to  include  Charlestown  and  in 

1868  to  any  city  whose  city  council  should  accept  it,  and  in  1871 
it  was  put  in  force  in  all  cities,  and  in  all  towns  which  should 
vote  to  accept  it.  Park  betterments  were  first  authorized  by 
general  laws  in  1882,  street  watering  assessments  in  1890,  and 
assessments  for  the  destruction  of  insect  pests  in  1905.3 

When  the  revision  and  consolidation  of  the  general  laws 
was  undertaken  in  1916,  the  commissioners  found  the  laws  re- 
lating to  betterments  and  special  assessments  in  much  confu- 
sion. From  time  to  time,  as  the  need  had  arisen,  laws  had  been 
passed  authorizing  the  imposition  of  assessments  for  different 
kinds  of  improvements,  and  many  special  betterment  laws  had 
also  been  enacted  applicable  to  particular  cities  and  towns  or  to 
districts  affected  by  particular  improvements.  The  result  was 
that  while  the  same  general  principles  of  law  had  been  estab- 
lished in  all  cases,  the  details  of  administration  were  different  in 
different  cities  and  towns  and  in  different  classes  of  improve- 
ments. As  a  consequence  there  was  much  uncertainty  and  con- 
fusion as  to  the  law  applicable  in  any  particular  case,  and  fur- 
thermore, on  account  of  the  piecemeal  manner  in  which  the  law 
had  been  built  up  there  were  certain  classes  of  public  improve- 
ments which  conferred  a  direct  benefit  upon  adjoining  land,  but 
with  respect  to  which  no  provision  for  the  assessment  of  the 
benefit  existed.4 

The  commissioners  thereupon  caused  to  be  prepared  a  draft 
of  a  statute  establishing  a  uniform  system  for  the  assessment 
of  betterments,  and  this  statute  was  enacted  in  19 185  and  went 
into  effect  in  1921  as  chapter  eighty  of  the  General  Laws.  The 
effect  of  this  statute  was  two-fold.  In  the  first  place  it  estab- 
lished a  uniform  precedure  for  the  levying  of  betterment  assess- 
ments, and  superseded  the  existing  procedure  in  each  case 
whether  established  by  general  or  by  special  laws.  In  this  re- 
spect it  was  merely  a  change  in  procedure.  In  the  second  place 
it  extended  the  right  to  levy  betterment  assessments  to  every 

3  The  history  and  development  of  the  provisions  of  statute  authorizing 
betterment  assessments  for  particular  classes  of  improvements  may  be  found  in 
the  first  edition  of  this  work,  which  was  published  while  these  statutes  were  still 
in  force. 

*  See  Preliminary  Report  of  Commissioners  to  Consolidate  and  Arrange  the 
General  Laws,  p.  228. 

6  St.  1918,  c.  257,  §219. 


Betterments  671 

G.L.  c.  80,  §1] 

public  improvement  laid  out  by  a  public  governmental  body 
whenever  a  limited  and  determinable  area  received  a  special 
benefit  from  the  improvement.  In  this  respect  it  made  an 
important  change  in  the  substantive  law,  extending  the  power  of 
levying  betterments  to  all  cases  in  which  betterments  might 
be  constitutionally  levied  and  dispensing  with  the  necessity 
of  special  statutory  authority  to  justify  an  assessment  on  any 
particular  class  of  improvement.  It  thus  not  only  included 
other  improvements  than  those  already  enumerated  in  the  stat- 
utes authorizing  betterment  assessments,  but  also  extended  the 
power  of  levying  betterments  which  had  previously  been  com- 
monly limited  to  cities  and  to  such  towns  as  had  accepted  par- 
ticular betterment  acts,  to  all  towns  and  counties  in  every  case 
which  might  arise. 

It  is  to  be  noted  however  that  the  statute  is  limited  in  its 
application  to  improvements  laid  out  or  established  by  a  for- 
mal vote  or  order  and  that  it  does  not  include  construction  or 
other  work  performed  on  land  already  owned  or  controlled  by  the 
public  authorities,  or  work  which  requires  no  formal  order  to 
establish  it.  Accordingly,  assessments  for  the  establishment  of 
sewers  and  sidewalks  in  existing  public  ways,  or  for  sprinkling 
streets  or  for  exterminating  insect  pests  are  not  within  the  scope 
of  the  statute,  and  the  statute  does  not  ex  proprio  vigore  extend 
to  such  assessments  even  with  respect  to  its  administrative  pro- 
visions. It  will  be  found  however  that  most  of  the  statutes  which 
authorize  assessments  of  such  a  character  specifically  adopt  by 
reference  the  administrative  provisions  contained  in  the  chapter 
on  betterments.6 

The  statutes  authorizing  the  levy  of  betterments  were  not  in- 
tended to  provide  an  exclusive  method  by  which  the  cost  of  lay- 
ing out  and  constructing  public  improvements  should  be  met.7 
The  method  which  had,  except  in  a  few  instances,  been  always 
employed  of  paying  the  entire  cost  by  general  taxation  except 
so  far  as  the  damages  were  reduced  by  set-off  of  special  benefits 
or  the  expenses  met  by  voluntary  private  contribution  was  left 
in  full  force  and  intended  to  be  the  ordinary  mode  of  proceeding. 

6  See  G.  L.  c.  83,  §28,  infra,  page  726  (sewers  and  sidewalks)  ;  G.  L.  c.  85, 
§6,  infra,  page  727  (removal  of  snow)  ;  G.  L.  c.  Ill,  §§136,  138,  infra,  page  729 
(drainage  of  wet  lands);  G.  L.  c.  252,  §13,  infra,  page  751  (improvement  of  low 
lands) ;  G.  L.  c.  252,  §19,  infra,  page  753  (roads  to  swamps  and  quarries). 

7  Sexton  v.  North  Bridgewater,   116  Mass.  200   (1874). 


672  Taxation  in  Massachusetts 

[G.  L.  c.  80,  §  l 

As  however  owners  of  considerable  tracts  of  land  often  find  it 
for  their  pecuniary  advantage  to  lay  out  and  construct  streets 
wholly  at  their  own  cost,  being  more  than  made  good  by  the 
increased  value  of  their  remaining  lands,  and  as  the  set-off  of 
special  benefits  from  damages  may  result  in  an  unequal  and 
disproportionate  distribution  of  the  burden  of  paying  for  the 
benefit,  since  one  who  is  damaged  but  little  if  any  may  be  very 
greatly  benefited  and  yet  contribute  neither  money  nor  land  to 
the  improvement,  while  another  who  receives  no  greater  benefit 
but  whose  land  of  value  equal  to  or  greater  than  the  amount  of 
the  benefit  happens  to  be  taken  thereby  pays  in  full  for  the 
benefit  his  remaining  land  receives,  in  some  instances  it  is  more 
just  to  the  public  and  to  the  individual  owners  that  the  public 
should  be  reimbursed  in  whole  or  in  part  for  the  expense  of  a 
public  improvement  by  the  owners  of  land  which  it  peculiarly 
benefits,  in  proportion  to  and  not  exceeding  the  benefit  which 
each  receives.  It  would  not  however  be  wise  and  just  to  lay 
out  all  public  improvements  under  the  betterment  system,8 
and  for  this  reason  it  is  expressly  provided  that  betterments 
shall  not  be  assessed  for  a  public  improvement  unless  the  order 
establishing  the  improvement  expressly  provides  that  better- 
ments are  to  be  assessed  therefor.9 

What  Benefits  Can  Be  Assessed. 

There  may  be  three  classes  of  benefits  arising  from  a  public 
improvement.  (1)  General  benefits  or  those  arising  from  causes 
which  affect  the  entire  community  and  perhaps  raise  the  value 
of  land  in  an  entire  city  or  town.  (2)  Local  benefits,  or  those 
accruing  to  an  entire  neighborhood  by  reason  of  its  proximity 
to  the  improvement.  (3)  Special  benefits,  or  those  relating  to 
a  particular  estate  by  reason  of  its  direct  relation  to  the  improve- 
ment. To  illustrate  by  a  concrete  case,  suppose  a  new  highway 
is  constructed  from  the  center  of  one  municipality  to  a  neighbor- 

•  Atkinson  v.  Newton,  169  Mass.  240,  245   (1897). 

*  See  also  G.  L.  c.  79,  §1.  It  was  at  first  held  to  be  a  question  of  fact 
whether  a  highway  was  laid  out  under  the  betterment  act,  Allen  v.  Charlestewn, 
109  Mass.  243  (1872);  Godbold  v.  Chelsea,  111  Mass.  294  (1873);  Sexton  v. 
North  Bridgewater,  116  Mass.  200  (1874)  ;  Ryan  v.  Boston,  118  Mass.  248  (1875), 
but  in  1874  provision  was  made  that  every  public  way  should  be  deemed  to  be 
laid  out  under  the  highway  act  unless  the  order  laying  it  out  expressly  declared 
the  proceedings  to  be  under  the  betterment  act.  St.  1874,  c.  275,  §2;  Masonic 
Building  Association  v.  Brownell,  164  Mass.  306   (1895). 


Betterments  673 

G.L.  c.  80,  §1] 

ing  city  with  which  good  road  connection  had  previously  been 
lacking.  The  benefit  to  the  whole  municipality  by  increased 
facility  of  communication  with  the  neighboring  city  is  the  gen- 
eral benefit.  The  benefit  to  the  section  through  which  the  new 
highway  passes  in  increasing  values  for  business  use  on  account 
of  the  traffic  upon  the  new  highway  is  the  local  benefit.  The 
benefit  to  a  particular  parcel  by  reason  of  its  being  left  in  a 
desirable  size  or  shape  or  in  fronting  upon  a  desirable  street  is 
the  special  benefit.1 

Long  before  the  assessment  of  betterments  for  public  im- 
provements such  as  streets  or  sewers  had  become  the  general 
practice,  it  was  customary,  when  land  had  been  taken  for  a  public 
improvement  and  the  owner  was  seeking  compensation,  to  re- 
quire the  benefit  to  his  remaining  land  to  be  set  off  from  the 
damages2  and  this  is  still  done  when  betterments  are  not  as- 
sessed.3 Under  the  highway  act  and  some  other  similar  stat- 
utes only  special  benefits  were  allowed  to  be  set  off,4  but  this 
rule  was  merely  a  matter  of  construction;  there  is  no  constitu- 
tional requirement  that  local  benefits  cannot  be  set  off,  and, 
under  statutes  which  are  worded  so  as  to  authorize  it,  both  local 
and  special  benefits  are  the  subject  of  set-off.5  Of  course  the 
same  benefits  cannot  be  both  the  subject  of  set-off  and  of  an 
assessment  of  betterments,6  and  under  the  early  betterment 
acts,  inasmuch  as  the  special  benefits  were  still  set  off  from  the 
damages,  the  betterment  was  confined  to  the  local  benefits.7 
The  statutes  which  permitted  the  set-off  of  special  benefits  when 

'Upham  v.  Worcester,  113  Mass.  97  (1873)  ;  Bancroft  v.  Boston,  115  Mass. 
377  (1874)  ;  Baker  v.  Boston  Elevated  Ry.  Co.,  183  Mass.  178,  182  (1903). 

2  Commonwealth  v.  Coombs,  2  Mass.  489  (1807)  ;  Commonwealth  v.  Sessions 
of  Norfolk,  5  Mass.  435  (1809)  ;  Palmer  Co.  v.  Ferrill,  17  Pick.  58   (1835). 

•Baker  v.  Boston  Elevated  Railway  Co.,  183  Mass.  178  (1903)  ;  Peabody  v. 
Boston  Elevated  Railway  Co.,  191  Mass.  513  (1906)  ;  Fifty  Associates  v.  Boston, 
201  Mass.  585  (1909). 

4Meacham  v.  Fitchburg  R.  R.  Co.,  4  Cush.  291  (1849)  ;  Dickinson  v.  Fitch- 
burg,  13  Gray  546  (1859);  Whitman  v.  Boston  &  Maine  R.  R.,  7  Allen  313 
(1863)  ;  Paine  v.  Woods,  108  Mass.  160  (1871)  ;  Hilbourne  v.  Suffolk,  120  Mass. 
393  (1876)  ;  Parks  v.  Hampden,  120  Mass.  395  (1876)  ;  Childs  v.  New  Haven  & 
Northampton  Co.,  133  Mass.  253  (1882). 

5  Baker  v.  Boston  Elevated  Ry.  Co.,  183  Mass.  178  (1903)  ;  Peabody  v.  Boston 
Elevated  Ry.  Co.,  191  Mass.  513  (1906). 

•Benton  v.  Brookline,  151  Mass.  256  (1890)  ;  Garvey  v.  Revere,  187  Mass. 
545  (1905).  When  a  betterment  assessment  might  have  been  but  has  not  been 
laid,  benefits  which  would  have  been  included  in  the  assessment  cannot  be  set  off 
in  a  petition  for  damages.   Atkins  v.  Boston,  188  Mass.  77   (1905). 

TGreen  v.  Fall  River,  113  Mass.  262  (1873);  French  v.  Lowell,  117  Mass. 
363  (1875). 


674  Taxation  in  Massachusetts 

[G.  L.  c.  80,  §  l 

betterments  were  to  be  assessed  were  changed  by  later  enact- 
ments, so  that  now  it  is  the  general  rule  that  an  assessment  of 
betterments  includes  both  local  and  special  benefits.8  General 
benefits  cannot  of  course  be  the  subject  either  of  set-off  or  of 
assessment  for  betterments.9 

It  follows  from  what  has  already  been  said  that  in  distin- 
guishing between  general  benefits  and  local  benefits  for  purposes 
of  taxation,  distinctions  which  have  been  drawn  by  the  courts 
between  the  different  classes  of  benefits  for  the  purpose  of  fix- 
ing damages  under  the  power  of  eminent  domain  are  of  no 
importance  as  precedents,10  unless  the  statute  under  which  the 
damages  were  awarded  provided  for  the  set-off  of  all  benefits 
not  general.11  Any  actual  advantageous  effect  upon  a  well 
defined  and  limited  part  of  a  city  or  town  can  be  recognized  as 
a  benefit  when  it  comes  to  the  imposition  of  a  special  assess- 
ment under  the  power  of  taxation.12  In  other  words  every  kind 
of  benefit  and  advantage  which  enters  into  the  value  of  the  land 
beyond  the  advantage  received  generally  by  all  land  in  the 
city  or  town  may  be  considered,13  and  it  is  not  even  necessary 
that  the  local  benefit  differ  from  the  general  benefit  in  kind  if 
there  is  an  appreciable  difference  in  degree.14 

The  rules  by  which  the  amount  of  benefit  conferred  upon 
land  by  a  public  improvement  is  to  be  ascertained  are  the  same 
as  those  by  which  land  values  are  to  be  determined  in  any  other 
connection.  The  inquiry  is  how  much  has  the  particular  public 
improvement  added  to  the  fair  market  value  of  the  property, 
as  between  a  willing  seller  and  a  willing  buyer,  with  reference 
to  all  the  uses  to  which  it  is  reasonably  adapted  and  for  which 
it  is  plainly  available,  prospective  as  well  as  present,  by  strangers 
as  well  as  by  the  owner,  considering  chances  and  probabilities 
of  future  use  only  if  sufficiently  near  in  time  and  definite  in 
kind  to  be  of  practical  importance  and  to  enter  into  present 
market  value.15 

8  Benton  v.  Brookline,  151  Mass.  250   (1890). 

"Upham  v.  Worcester,  113  Mass.  97  (1873)  ;  Baker  v.  Boston  Elevated  Rail- 
way Co.,  183  Mass.  178,  182  (1903). 

10  Sears  v.  Street  Commissioners  of  Boston,  180  Mass.  274   (1902). 

11  As  in  Peabody  v.  Boston  Elevated  Ry.  Co.,  191  Mass.  513   (1906). 

12  Sears  v.  Street  Commissioners  of  Boston,  180  Mass.  274  (1902). 
"Peabody  v.  Boston  Elevated  Ry.  Co.,  191  Mass.  513   (1906). 
"Peabody  v.  Boston  Elevated  Ry.  Co.,  191  Mass.  513   (1906). 
"Driscoll  v.  Northbridge,  210  Mass.  151   (1911). 


Betterments  675 

G.L.c.80,§l] 

Exemptions  from  Special  Assessments 
It  is  well  settled  that  the  exemption  from  taxation  granted 
by  general  laws1  to  certain  property  of  charitable  and  other 
corporations  of  similar  character  does  not  per  se  include  an 
exemption  from  special  assessments.  Charitable  institutions 
are  exempted  from  taxation  because  they  usually  relieve  the 
community  of  a  burden  which  it  would  itself  be  obliged  to  bear. 
A  special  assessment  frequently  takes  the  place  of  a  set-off  of 
benefits  from  the  damages  caused  by  the  construction  of  a 
public  work,  and  if  land  was  taken  from  a  charitable  corpora- 
tion and  it  was  not  assessed  for  betterments  it  would  receive 
a  greater  amount  in  damages  than  the  amount  of  injury  in- 
curred, and  this  excess  might  have  to  be  met  by  the  other  abut- 
ters. There  is  no  reason  that  the  abutters  should  bear  this  addi- 
tional expense  merely  because  the  whole  community  is  relieved 
of  a  burden  by  the  charitable  acts  of  the  corporation.  While 
this  situation  would  not  arise  in  every  case  and  is  less  likely 
since  assessments  have  been  limited  to  actual  benefit,  it  formed 
a  strong  reason  for  the  establishment  of  the  rule,  and  the  rule 
as  a  rule  is  still  in  force.2  When  however  the  property  sought 
to  be  assessed  is  devoted  by  statute  to  a  perpetual  use  which 
can  derive  no  enjoyment  of  the  improvement  for  which  the 
assessment  is  levied,  it  cannot  be  subjected  to  such  assessment, 
not  so  much  on  account  of  an  exemption  from  taxation,  whether 
derived  from  general  laws,  the  charter  of  the  corporation  or  from 
implication  of  law,  but  because  an  assessment  cannot  constitu- 
tionally be  levied  on  property  for  the  cost  of  an  improvement 
which  cannot  by  any  possibility  benefit  it  for  either  use  or  sale.3 
In  some  cases  it  will  be  plain  as  a  matter  of  law  that  a  par- 
ticular public  improvement  will  be  of  no  benefit  to  a  neighbor- 
ing charitable  or  educational  institution.     In  other  cases  how- 

*G.  L.  c.  59,  §5,  supra,  page  193. 

2  Boston  Seamen's  Friend  Society  v.  Boston,  116  Mass.  181  (1874),  a  case 
of  a  betterment  for  widening  a  street,  assessed  upon  a  charitable  corporation. 
The  principle  was  applied,  in  Worcester  Agricultural  Society  v.  Worcester,  116 
Mass.  189  (1874),  to  a  sewer  assessment  upon  an  agricultural  society,  in 
Phillips  Academy  v.  Andover,  175  Mass.  118  (1900),  to  a  street  watering  assess- 
ment upon  an  educational  corporation  and  in  Garden  Cemetery  Corporation  v. 
Baker,  218  Mass.  339  (1914)  to  a  street  watering  assessment  upon  a  cemetery 
corporation.  See  also  to  same  effect  Illinois  Central  R.  R.  Co.  v.  Decatur,  147 
U.  S.  190  (1893). 

s  Mount  Auburn  Cemetery  v.  Cambridge,  150  Mass.  12  (1889);  Boston  v. 
Boston  &  Albany  R.  R.  Co.,  170  Mass.  95  (1898). 


676  Taxation  in  Massachusetts 

[G.  L.  c.  80,  §  1 

ever  whether  the  improvement  might  confer  a  benefit  upon  the 
institution  is  a  question  of  fact,  and  must  be  determined  in 
the  same  manner  as  any  other  question  of  fact,  and  a  finding 
made  thereon  by  the  trial  court ;  and  if  the  institution  would  re- 
ceive a  benefit  it  is  liable  to  assessment.4 

The  exemption  from  general  taxation  which,  it  has  been  held, 
extends  by  implication  to  all  property  devoted  to  the  public 
use15  includes  special  assessments  as  well,  for  the  principles  of 
propriety,  justice  and  expediency  upon  which  the  exemption 
rests  are  applicable  alike  to  every  kind  of  taxation.6  Moreover, 
as  such  assessments  are  usually  enforceable  only  by  a  sale  of 
the  land  assessed,  it  can  hardly  have  been  the  intention  of  the 
legislature  to  impose  them  upon  land  which  is  one  of  the  instru- 
mentalities by  which  public  duties  are  performed.7 

When  the  exemption  is  contained  in  the  charter  of  the  cor- 
poration, whether  it  includes  special  assessments  depends  upon 
the  wording  of  the  charter.  An  exemption  from  all  taxes  does 
not  in  itself  include  special  assessments,8  but  freedom  from  "all 
civil  impositions,  taxes  and  rates"  is,  it  has  been  held,  sufficiently 
broad  to  include  special  assessments.9 

Time  of  Levy 

Until  1869  there  was  no  requirement  in  the  case  of  better- 
ment assessments  for  highway  purposes  that  the  assessment 
should  not  be  made  until  the  work  was  completed  or  that  it 
should  be  made  within  any  specified  limit  of  time,  but  in  that 
year  by  separate  enactments  such  requirements  were  imposed, 
two  years  from  the  order  being  the  limit  in  the  latter  case.1 

♦Garden  Cemetery  Corporation  v.  Baker,  218  Mass.  339   (1914). 

5  Supra,  page  217. 

6  Worcester  County  v.  Worcester,  116  Mass.  193  (1874);  Boston  v.  Boston 
&  Albany  R.  R.  Co.,  170  Mass.  95   (1898). 

7  Worcester  County  v.  Worcester,  116  Mass.  193  (1874).  And  see  also  Mount 
Auburn  Cemetery  v.  Cambridge,  150  Mass.  12  (1889).  This  is  not  the  only 
ground  for  the  rule,  however,  for  the  same  decision  was  made  in  the  case  of  an 
assessment  enforceable  by  action  at  law.  Boston  v.  Boston  &  Albany  R.  R.  Co., 
170  Mass.  95  (1898). 

8  Boston  Asylum  and  Farm  School  for  Indigent  Boys  v.  Street  Commissioners 
of  Boston,  180  Mass.  485  (1902). 

•Harvard  College  v.  Aldermen  of  Boston,  104  Mass.  470   (1870). 
1  For   a  history  of  this  legislation   see  Foster   v.   Park   Commissioners,   133 
Mass.  321    (1882).    As  to  the  levy  of  assessments  before  the  completion  of  the 
improvement   see   Jones   v.    Metropolitan    Park.  Commissioners,    181    Mass.    494 
(1902). 


Betterments  677 

G.L.c.  80,  §1] 

Under  the  earlier  statutes  it  was  held  that  an  abutter  could 
not  complain  if  he  was  assessed  before  the  street  was  fully  com- 
pleted, because  his  assessment  was  thereby  less  than  it  would 
otherwise  have  been  and  the  city  was  still  bound  to  complete 
the  street.2  Under  the  statutes  in  their  later  form  it  was  held 
that  an  assessment  would  not  be  defeated  by  a  failure  to  complete 
the  way  in  trivial  and  unimportant  particulars,3  but  that  an 
assessment  must  be  considered  as  a  claim  by  the  public  authori- 
ties that  the  way  was  completed  and  the  benefit  fixed  by  the 
condition  of  the  way  as  it  then  stood.4  As  far  as  the  other  re- 
quirement, that  the  betterments  be  assessed  within  two  years  of 
the  order  of  laying  out  is  concerned,  it  was  held  that  there  must 
be  an  order  upon  which  to  base  the  assessment  even  before  the 
statute  was  so  clear  in  requiring  it,5  and  it  was  held  that  the  two 
years'  period  did  not  begin  to  run  until  the  order  received  the 
adoption  or  approval  legally  necessary  to  put  it  in  force.6 

While  these  statutes  were  in  force,  if  the  construction  of  a 
public  highway  was  not  completed  for  any  reason  until  after 
two  years  from  the  order  establishing  it,  no  betterments  could 
be  assessed.  As  the  statutes  provided  no  means  of  giving  notice 
to  the  public  of  the  anticipated  amount  of  the  assessment  or 
of  the  area  to  be  assessed,  such  a  limitation  was  of  importance; 
in  the  case  of  sewers,  to  which  it  did  not  apply,  assessments 
levied  many  years  after  the  order  of  construction  were  held 
valid.7    When  the  general  betterment  act  was  enacted  in  1918, 

2  Whiting  v.  Mayor  &  Aldermen  of  Boston,  106  Mass.  89  (1870). 

3  In  Chase  v.  Aldermen  of  Springfield,  119  Mass.  556  (1876),  it  was  held 
that  the  mere  fact  that  railings  and  barriers  had  not  been  erected  did  not  make  the 
work  incomplete  so  that  betterments  could  not  be  assessed.  In  Lincoln  v.  Wor- 
cester, 122  Mass.  119  (1877),  it  was  held  that  the  fact  that  the  sidewalk  op- 
posite petitioner's  land  at  the  point  where  it  was  crossed  by  his  driveway  was 
not  brought  to  grade  did  not  defeat  the  assessment. 

4  In  Chase  v.  Aldermen  of  Springfield,  119  Mass.  556  (1876),  it  was  held 
that  a  betterment  was  not  invalid  "because  no  grade  line  has  been  established." 
The  rights  and  liabilities  of  abutters  depend  on  the  grade  actually  constructed. 
In  Lincoln  v.  Worcester,  122  Mass.  119  (1877),  it  was  said  by  the  court  that  the 
act  of  making  the  assessment  is  a  claim  on  the  part  of  the  respondent  that  it  has 
done  the  widening  and  grading  which  it  intended  to  do;  and,  in  considering  the 
reasonableness  and  justice  of  the  assessment  the  jury  are  to  consider  what  has 
actually  been  done  rather  than  what  on  paper  was  directed  to  be  done. 

6  Hitchcock  v.  Aldermen  of  Springfield,  121  Mass.  382   (1876). 

"Quinn  v.  Cambridge,  187  Mass.  507  (1905)  ;  Jewett  v.  Mayor  of  Medford, 
233  Mass.  65  (1919). 

7  See  for  example  Hester  v.  Collector  of  Brockton,  217  Mass.  422  (1914), 
in  which  an  assessment  levied  seventeen  years  after  the  order  for  construction 
was  sustained. 


678  Taxation  in  Massachusetts 

[G.  L.  c.  80,  §  l 

inasmuch  as  provision  was  made  for  recording  notice  of  the  an- 
ticipated amount  of  assessment  and  of  the  area  to  be  assessed,8 
no  reason  remained  for  strictly  limiting  the  time  of  the  assess- 
ment or  denying  the  right  to  levy  an  assessment  in  cases  of  im- 
provements which  could  not  be  completed  within  two  years; 
and  the  only  limitation  of  time  imposed  under  the  present  law 
is  that  the  assessment  must  be  levied  within  six  months  after 
the  completion  of  the  improvement. 

Assessment  Limited  to  the  Actual  Cost  and  to  the  Actual 

Benefit 

The  amount  of  the  betterment  assessment  levied  for  a  par- 
ticular public  improvement  is  strictly  limited  to  the  cost  of 
improvement.  The  fact  that  a  special  benefit  is  derived  from 
the  improvement  furnishes  a  justification  for  the  imposition 
of  a  betterment  assessment,  but  such  benefit  would  not  of  itself 
warrant  the  exaction  of  money  by  way  of  compensation  there- 
for. The  estates  are  assessed  not  for  the  benefit  conferred 
but  for  the  cost  of  the  improvement,  and  the  benefit  is  merely 
a  means  of  apportioning  the  cost.1 

The  statute  provides  that  the  assessable  cost  shall  include 
all  damages  awarded  under  chapter  seventy-nine;  and  the  cost 
clearly  includes  only  such  damages  as  may  be  recovered  in 
legal  proceedings,  and  if  a  city  or  town  pays  a  sum  as  damages 
which  it  is  under  no  legal  obligation  to  pay  the  amount  so  paid 
cannot  be  included  in  the  assessable  cost.2  It  does  not  of 
course  follow  that  a  person  assessed  can  contest  the  amount  of 
awards  and  adjustments  of  damages  made  in  good  faith,  or  even 
object  to  a  compromise  when  the  legal  liability  of  the  city  or 
town  was  really  a  disputed  question. 

The  rule  of  damages  is  precisely  the  same  whether  the  order 
of  taking  states  that  betterments  are  to  be  assessed  or  not,  ex- 
cept that  if  betterments  are  not  to  be  assessed  the  special  ben- 
efit to  the  land  from  the  improvement  is  set  off  from  the  dam- 

8G.  L.  c.  80,  §2,  infra,  page  681. 

1  Chase  v.  Aldermen  of  Springfield,  119  Mass.  556  (1876),  and  see  also 
Supra,  Part  I,  §68. 

2  Fuller  v.  Somerville,  136  Mass.  556   (1884). 


Betterments  679 

G.L.c.  80,  §1] 

ages,3  but  if  betterments  are  to  be  assessed  such  benefit  is  not 
set  off  but  the  benefits  are  separately  assessed.4 

The  assessment  upon  each  estate  is  strictly  limited  to  the 
actual  benefit  (in  excess  of  the  general  advantage  to  the  com- 
munity) to  such  estate.  This  limitation  is  imposed  by  the 
constitution  itself.5  The  street  betterment  act  limited  the  as- 
sessment to  one-half  the  benefit,  and  this  same  limitation  was 
contained  in  the  general  betterment  act  as  first  enacted;  but 
in  the  following  year  the  limitation  to  one-half  the  benefit  was 
struck  out.6  While  in  the  case  of  a  public  improvement  abut- 
ting upon  lots  of  similar  depth  and  similar  character  it  may  be 
a  reasonable  method  for  the  board  which  levies  the  assessment 
to  apportion  the  burden  among  the  different  lots  in  proportion 
to  frontage  upon  the  improvement  or  according  to  some  other 
arbitrary  measure,  it  must  be  remembered  that  the  law  con- 
templates a  determination  of  the  actual  benefit  to  each  lot,  and 
that  if  the  estates  assessed  are  of  different  characteristics  and  are 
affected  by  the  improvement  in  different  ways,  an  assessment 
by  linear  foot  of  frontage  or  by  any  other  arbitrary  measure 
is  improper. 

While  it  is  not  proper  to  join  together  the  cost  of  two  sep- 
arate and  independent  public  improvements  and  to  assess  the 
cost  in  proportion  to  the  benefits  derived  from  both  improve- 
ments,7 there  is  no  objection  to  an  assessment  based  upon  the 

3  Benton  v.  Brookline,  151  Mass.  250,  261   (1890). 

4  In  the  early  betterment  acts  of  the  present  series,  inasmuch  as  they  ap- 
plied only  to  cities,  and  the  same  board  of  officers  that  laid  out  the  streets  and 
awarded  the  damages  assessed  the  betterments,  it  was  held  that  no  benefits  could 
be  set  oft'  against  the  damages.  Godbold  v.  Chelsea,  111  Mass.  294  (1873).  And 
see  also  Prince  v.  Boston,  111  Mass.  226  (1872)  ;  Bancroft  v.  Boston,  115  Mass. 
377  (1874);  Boston  Seamen's  Friend  Society  v.  Boston,  116  Mass.  181  (1874). 
When  a  few  years  later  the  betterment  acts  were  extended  to  towns  and  author- 
ized city  or  town  officials  to  assess  betterments  for  ways  laid  out  by  county  com: 
missioners,  inasmuch  as  when  the  damages  were  awarded  it  could  not  be  known 
whether  betterments  would  be  assessed,  special  benefits  were  allowed  to  be  set  off' 
from  the  damages  and  the  betterments  excluded  special  benefits  and  included 
only  local  benefits.  Upham  v.  Worcester,  113  Mass.  97  (1873);  Green  v.  Fall 
River,  113  Mass.  262  (1873)  ;  Wood  v.  Hudson,  114  Mass.  513  (1874).  When  in 
1874  it  was  provided  that  every  way  should  be  deemed  laid  out  under  the  high- 
way act  unless  the  order  laying  it  out  expressly  declared  it  to  be  under  the 
betterment  act,  there  was  no  further  occasion  to  exclude  special  benefits  from  the 
betterments  or  allow  them  to  be  set  off  from  the  damages.  Benton  v.  Brookline, 
151  Mass.  250,  264  (1890). 

5  Part  I,  §69. 

6  St.  1919,  c.  333,  §4. 

7  Arnold  v.  Cambridge,  106  Mass.  352  (1871). 


680  Taxation  in  Massachusetts 

[G.  L.  c.  80,  §  1 

cost  and  benefit  of  an  improvement  taken  as  a  whole,  even  if 
it  includes  distinct  and  separate  elements,  if  it  is,  in  fact,  but 
a  single  improvement.8 

Street  Betterments  in  the  City  of  Boston 

As  already  stated,  the  modern  development  of  street  better- 
ment assessments  in  this  commonwealth  originated  with  a  spe- 
cial statute  applicable  to  certain  streets  in  Boston,  and  soon 
afterwards  a  statute  applicable  to  Boston  generally  was  enacted 
which  was  gradually  extended  throughout  the  commonwealth 
and  constitutes  in  large  measure  the  basis  of  the  present  gen- 
eral betterment  act.  Originally  the  assessments  were  made  in 
Boston  by  the  board  of  aldermen,  but  the  board  of  street  com- 
missioners was  established  in  1870  and  the  power  to  assess 
betterments  was  transferred  to  this  board  in  the  following  year.1 

In  1891  an  elaborate  statute  regarding  highways  in  the  city 
of  Boston,  generally  called  the  board  of  survey  act,  was  enacted2 
which  made  especial  provision  for  betterment  assessments,  and 
many  extensive  improvements  were  projected  and  undertaken; 
but  in  1901  the  portion  of  the  statute  relating  to  betterments 
was  held  to  be  unconstitutional  in  that  it  authorized  the  assess- 
ment of  the  whole  cost  of  laying  out  and  constructing  a  highway 
to  be  assessed  in  proportion  to  benefits  without  regard  to  the 
possibility  that  the  actual  benefit  in  each  case  might  be  exceeded.3 
About  this  time  assessments  for  betterments  under  other  statutes 
had  been  held  invalid  by  the  court,  some  on  account  of  the  un- 
constitutionality of  the  statute,  and  others  on  account  of  irregu- 
lar or  illegal  action  of  the  public  authorities  in  proceedings  on 
which  the  assessments  were  founded.  It  was  supposed  that  there 
were  other  invalid  assessments  and  other  completed  improve- 
ments for  which  assessments  of  betterments  had  been  contem- 
plated, which  in  view  of  these  decisions  could  not  then  be  legally 
made.  Under  these  circumstances  in  1902  a  statute  was  enacted 
amending  the  board  of  survey  act  and  providing  for  assessments 

8  Lincoln  v.  Street  Commissioners,  176  Mass.  210  (1900);  Sears  v.  Street 
Commissioners,  180  Mass.  274  (1902)  ;  American  Unitarian  Association  v.  Com- 
monwealth, 193  Mass.  470  ( 1907 )  ;  Quinn  v.  Mayor  and  Aldermen  of  Springfield, 
233  Mass.  595  (1919). 

1  See  Bigelow  v.  Boston,  123  Mass.  50  (1877). 

aSt.  1891,  c.  323. 

3Lordon  v.  Coffey,  178  Mass.  489  (1901)  ;  Harwood  v.  Street  Commissioners 
of  Boston,  183  Mass.  348  (1903). 


Betterments  681 

G.  L.  c.  80,  §§  l,  2] 

for  public  ways  subsequently  laid  out  in  accordance  with  con- 
stitutional principles;4  and  about  the  same  time  another  stat- 
ute was  enacted  authorizing  the  re-assessment  in  a  constitu- 
tional manner  of  assessments  for  public  ways  completed  within 
six  years  before  the  passage  of  the  act.5  This  last  statute  was 
held  to  be  constitutional,6  to  apply  to  assessments  invalid  for 
irregularity  as  well  as  to  those  laid  out  under  an  unconstitutional 
statute7  and  to  apply  to  ways  laid  out  more  than  six  years 
before  its  passage  if  completed  within  six  years  of  its  passage.8 
There  were  further  amendments  to  the  amended  board  of 
survey  act  and  in  1906  a  new  statute  was  passed  covering  the 
whole  subject.9  This  statute  operated  in  a  satisfactory  manner, 
and  when  the  general  betterment  act  was  enacted  in  1918,  and 
superseded  all  special  acts  then  in  force  with  relation  to  the 
levying  of  assessments,  many  of  the  advantageous  features  of 
the  city  of  Boston  statute  were  incorporated  into  the  general 
betterment  act,  and  thus  extended  throughout  the  common- 
wealth. 

Plan  and  Estimate 

Section  2.  An  order  under  section  one  which  states  that  better- 
ments are  to  be  assessed  for  the  improvement  shall  contain  a  descrip- 
tion sufficiently  accurate  for  identification  of  the  area  which  it  is  ex- 
pected will  receive  benefit  or  advantage,  other  than  the  general  ad- 
vantage to  the  community,  from  such  improvement,  and  shall  refer 
to  a  plan  of  such  area,  and  shall  contain  an  estimate  of  the  betterments 
that  will  be  assessed  upon  each  parcel  of  land  within  such  area ;  and 
such  order,  plan  and  estimate  shall  be  recorded,  within  thirty  days 
from  the  adoption  of  the  order,  in  the  registry  of  deeds  of  every 
county  or  district  in  which  the  benefited  area  is  situated.  No  better- 
ments shall  be  assessed  for  such  improvement  unless  the  order,  plan 
and  estimate  are  recorded  as  herein  provided,  nor  upon  any  parcel 
of  land  not  within  such  area,  nor  for  a  greater  amount  than  such 
estimate. 

4  St.  1902,  c.  521. 

6  St.  1902,  c.  527. 

8  Warren  v.  Street  Commissioners  of  Boston,  187  Mass.  290  (1905). 

7  Warren  v.  Street  Commissioners  of  Boston,  187  Mass.  290  (1905). 

8  New  England  Hospital  v.  Street  Commissioners  of  Boston,  188  Mass.  88 
(1905). 

•  St.  1906,  c.  393. 


682  Taxation  in  Massachusetts 

[G.  L.  c.  80,  §§  2, 3 

This  section  was  intended  to  remedy  an  evil  which  had  long 
existed  in  the  betterment  laws.  The  lien  for  a  special  assess- 
ment arose,  under  the  law  as  it  previously  existed,  when  the 
order  for  the  laying  out  of  the  improvement  upon  which  it  was 
based  was  adopted;1  but  although  such  lien  constituted  an 
encumbrance,  it  was  not  of  record  in  the  registry  of  deeds,  and 
the  extent  of  the  area  to  be  assessed  and  the  probable  amount 
of  the  assessment  could  not  be  determined  even  by  an  examina- 
tion of  the  records  of  the  board  which  laid  out  the  improvement. 
Thus  an  inchoate  betterment  assessment  remained  a  hidden 
menace  in  the  conveyance  of  real  estate. 

Since  1880,  statutes  had  been  enacted,  providing  for  the 
recording  of  notice  of  intent  to  levy  a  betterment  assessment 
and  the  service  of  personal  notice  upon  the  owners  of  land  liable 
to  assessment,2  but  these  statutes  were  in  force  only  in  such 
cities  as  accepted  them  through  the  action  of  the  city  council; 
and  as  they  were  intended  for  the  benefit  of  the  citizens  rather 
than  of  the  city,  and  their  provisions  were  found  impracticable, 
they  were  rarely  used.  In  the  special  act  relating  to  the  city 
of  Boston,  provision  was  made  for  an  estimate  of  the  better- 
ments when  a  street  was  laid  out,  and  the  amount  of  the  esti- 
mate was  not  allowed  to  be  exceeded.3 

The  present  statute  was  enacted  as  a  part  of  the  general 
betterment  act  of  1918,  and  carries  to  its  logical  conclusion 
the  principle  of  giving  record  notice  of  a  betterment  assessment 
so  far  as  can  be  done  before  the  work  is  constructed  and  the 
cost  determined.  While  it  imposes  additional  trouble  and  ex- 
pense upon  the  officers  of  a  city  or  town,  it  is  believed  that  the 
convenience  to  property  owners  and  others  dealing  with  real 
estate  far  exceeds  the  inconvenience  to  those  who  duty  it  is  to 
carry  out  the  law. 

Surrender  of  Estate  Assessed 

Section  3.  An  owner  of  land  abutting  on  a  public  improvement 

and  liable  to  assessment  therefor  under  this  chapter  may  give  notice 

in  writing  to  the  board,  within  three  months  after  the  award  of 

damages  is  made,  that  he  elects  to  surrender  his  land;  and  if  said 

'Blackie  v.  Hudson,  117  Mass.  181    (1875)  ;  Carr  v.  Dooley,  119  Mass.  294 
(1876)  ;  Maloy  v.  Holl,  190  Mass.  277   (1906). 

2  St.  1880,  c.  187,  §§1-3,  inc.;  St.  1907,  c.  344,  §§  24-26,  inc. 

3  St.  1906,  c.  393/  §§2,  5. 


Betterments  683 

G.  L.  c.  80,  §  3] 

board  adjudge  that  the  public  convenience  and  necessity  require  the 
taking  of  such  abutting  estate  for  the  improvement  named,  they  may 
take  the  whole  thereof,  and  shall  thereupon  estimate  its  value,  exclud- 
ing the  benefit  or  advantage  accruing  from  such  improvement;  and 
such  owner  shall  convey  the  estate  to  the  body  politic  or  corporate  on 
behalf  of  which  the  assessment  was  made  and  may  recover  therefrom 
in  contract  the  value  so  estimated.  The  commonwealth,  county,  city, 
town  or  district  may  sell  any  portion  of  said  land  which  is  not  needed 
for  such  improvement. 

This  section  was  adopted  almost  verbatim  from  the  street 
betterment  act,  but  was  modified  so  as  to  cover  all  public  im- 
provements, and  the  right  to  offer  to  surrender  was  extended 
so  that  it  might  be  exercised  any  time  within  three  months  after 
the  award  of  damages.  The  principle  of  the  statute  was  em- 
bodied in  various  special  acts;  but  in  some  of  these  the  right  to 
surrender  was  absolute.1 

A  person  holding  any  estate  or  interest  in  land  is  an  "owner 
of  land"  within  the  meaning  of  this  statute  and  entitled  to  sur- 
render his  estate  or  interest.2  This  or  a  similar  statute  has 
been  held  to  apply  to  a  tenant  in  common,3  to  a  mortgagee4  and 
to  the  holder  of  an  equity  of  redemption.5  The  requirement  that 
the  land  abut  upon  the  way  is  construed  strictly  and  land  sepa- 
rated from  it  by  another  way  cannot  be  surrendered.6  The  right 
to  surrender  is  not  a  personal  right  in  the  owner,  but  the  assess- 
ment being  a  lien  and  surrender  being  a  means  of  paying  the 
assessment,  the  right  to  surrender  runs  with  the  land.7 

When  an  assessment  has  been  levied,  the  authority  of  the 
board  which  levied  it  is  exhausted,  and  it  cannot  by  vacating 
the  assessment  deprive  the  landowner  of  his  right  to  surrender.8 

1  Under  the  earlier  law  an  offer  to  surrender  had  to  be  made  before  the 
estimate  of  damages,  and  could  not  be  made  after  the  laying  out  of  a  public  way 
even  if  there  was  no  adjudication  as  to  damages,  for  a  failure  to  award  damages 
is  equivalent  to  an  award  of  no  damages.  Taintor  v.  Mayor  and  Aldermen  of  Cam- 
bridge, 197  Mass.  412  (1908). 

2Leavitt  v.  Cambridge,  120  Mass.  157  (1876);  Farnsworth  v.  Boston,  121 
Mass.  173  (1876)  ;  Barnstable  Savings  Bank  v.  Boston,  127  Mass.  254  (1879). 

"Leavitt  v.  Cambridge,  120  Mass.  157  (1876). 

'Barnstable  Savings  Bank  v.  Boston,  127  Mass.  254  (1879). 

•Farnsworth  v.  Boston,  121  Mass.  173  (1876). 

•Holt  v.  Somerville,  127  Mass.  408  (1876). 

1  Barnstable  Savings  Bank  v.  Boston,  127  Mass.  254  (1879). 

8  Farnsworth  v.  Boston,  121  Mass.  173  (1876)  ;  Barnstable  Savings  Bank  v. 
Boston,  127  Mass.  254  (1879). 


684  Taxation  in  Massachusetts 

[G.  L.  c.  80,  §§  3,  4 

Under  statutes  which  gave  the  owner  an  absolute  right  to  sur- 
render, it  has  been  held  that  mandamus  is  the  proper  remedy 
to  enforce  the  right  to  surrender;9  and  the  smallness  of  an  as- 
sessment does  not  destroy  the  owner's  right.10  If  part  of  an 
estate  has  been  taken  for  the  way  and  the  owner  has  made  a 
settlement  with  the  public  authorities  and  given  a  warranty 
deed  he  cannot  surrender  the  residue.11 

Collection 

Section  4.  Within  a  reasonable  time  after  making  the  assess- 
ment the  board  shall  commit  the  list  of  assessments  upon  land  in  each 
town  with  their  warrant  to  the  collector  of  taxes  thereof,  and  he  shall 
forthwith  send  notice  in  accordance  with  section  three  of  chapter 
sixty,  to  the  person  to  whom  each  parcel  was  assessed  at  the  last  pre- 
ceding annual  assessment  of  taxes.  Except  as  otherwise  herein  pro- 
vided, the  collector  shall  have  the  same  powers  and  be  subject  to  the 
same  duties  with  respect  to  such  assessments  as  in  the  case  of  the 
annual  taxes  upon  real  estate,  and  the  law  in  regard  to  the  collection 
of  the  annual  taxes,  to  the  sale  of  land  for  the  non-payment  thereof 
and  to  redemption  therefrom  shall  apply  to  assessments  made  under 
this  chapter,  so  far  as  the  same  are  applicable ;  but  the  owner  of  land 
assessed  shall  not  be  personally  liable  for  the  assessment  thereon. 
Every  collector  of  taxes  receiving  a  list  and  warrant  from  the  board 
shall  collect  the  assessment  therein  set  forth,  and  at  such  times  as  the 
board  shall  direct  shall  pay  over  to  the  treasurer  of  the  body  politic 
on  behalf  of  which  the  assessment  was  made  the  amounts  collected  by 
him.  All  assessments  apportioned  under  section  thirteen,  and  all  other 
assessments  on  real  estate  constituting  a  lien  thereon  and  remaining 
unpaid  on  April  first  in  any  year,  shall  be  placed  on  the  annual  tax 
bill  for  such  real  estate. 

Under  the  earlier  statutes  there  wao  no  express  provision 
for  the  commission  of  betterment  assessments  to  the  collector 
with  a  warrant,  signed  by  the  board  which  levied  the  assessment, 
directing  him  to  collect  the  assessment,  and  the  practice  in  the 
different  cities  and  towns  was  not  uniform.  In  general,  in 
cases  where  the  assessment  took  the  form  of  a  general  charge 

•Leavitt  v.  Cambridge,   120  Mass.   157    (1876);   Farnsworth  v.   Boston,   121 
Mass.  173  (1876)  ;  Barnstable  Savings  Bank  v.  Boston,  127  Mass.  254  (1879). 
10  Barnstable  Savings  Bank  v.  Boston,  127  Mass.  254  (1879). 
"Holt  v.  Somerville,  127  Mass.  408  (1879). 


Betterments  685 

G.  L.  c.  80,  §  4] 

running  over  a  series  of  years,  as  in  the  case  of  an  apportioned 
betterment  assessment  or  an  assessment  for  an  annually  re- 
curring expense,  the  assessment  was  certified  to  the  assessors 
and  committed  by  them  to  the  collector  with  their  warrant,  at 
the  same  time  as  the  annual  tax  levy.  When  a  single  assess- 
ment was  made  for  a  permanent  improvement,  the  assessment 
was  committed  by  the  board  which  levied  it  to  the  collector 
directly,  and  although  there  was  no  express  authority  for  a 
warrant,  a  warrant  was  usually  issued,  and  the  courts  on  sev- 
eral occasions  assumed  that  a  warrant  in  such  cases  was  prop- 
erly issued.1  The  general  betterment  act  of  1918  removed  all 
doubt  by  expressly  requiring  a  warrant. 

The  customary  method  of  collecting  a  special  assessment 
is  to  enforce  the  lien  upon  the  land  assessed,  although  in  this 
commonwealth  it  has  been  not  unusual  to  enforce  payment  of 
a  special  assessment  by  action  at  law  against  the  owner  of  the 
land  assessed  when  such  method  of  collection  was  authorized 
by  statute,2  and  some  narrow  distinctions  were  drawn  between 
statutes  which  impliedly  authorized  an  action  and  those  which 
did  not.3  As  the  method  of  collecting  special  assessments  by 
actions  at  law  had  fallen  into  disuse,  and  there  was  grave  doubt 
as  to  its  constitutionality,4  the  present  statute  was  so  drawn 
as  to  exclude  the  personal  liability  of  the  landowner.     In  any 

Leominster  v.  Conant,  139  Mass.  384,  388  (1885)  ;  Murphy  v.  Clinton,  182 
Mass.  198,  200  (1902). 

2  In  the  following  cases  actions  by  cities  and  towns  to  recover  special  assess- 
ments have  been  before  the  courts  without  any  intimation  that  any  constitutional 
difficulty  was  involved  in  the  proceeding.  Boston  v.  Shaw,  1  Met.  130  (1840)  ; 
Lowell  v.  Hadley,  8  Met.  180  (1844)  ;  Lowell  v.  Wentworth,  6  Cush.  221  (1850)  ; 
Lowell  v.  French,  6  Cush.  223  (1850)  ;  Lowell  v.  Wheelock,  11  Cush.  391  (1853)  ; 
Lowell  v.  Wyman,  12  Cush.  273  (1853);  Charlestown  v.  Stone,  15  Gray  40 
(1860)  ;  Roxbury  v.  Nickerson,  114  Mass.  544  (1874)  ;  West  Roxbury  v.  Minot, 
114  Mass.  546  (1874)  ;  Boston  v.  Boston  &  Albany  R.  R.  Co.,  170  Mass.  95  (1898). 
See  also  Torrey  v.  Wallis,  3  Cush.  442  (1849)  ;  Twycross  v.  Fitchburg  R.  R.  Co., 
10  Gray  293  (1858). 

3  When  a  statute  authorizes  the  levying  of  an  assessment  but  provides  no 
means  for  its  collection,  the  city  or  town  is  entitled  to  bring  an  action  at  common 
law,  and  if  subsequently  it  is  given  a  lien  on  the  land  assessed  the  latter  remedy 
will  be  taken  to  be  cumulative,  Lowell  v.  Wyman,  12  Cush.  273  (1853)  ;  but  if  the 
statute  which  first  authorizes  the  assessment  provides  for  a  lien  and  is  silent  as 
to  other  remedies  the  lien  will  be  taken  to  be  exclusive.  Roxbury  v.  Nickerson, 
114  Mass.  544  (1874)  ;  West  Roxbury  v.  Minot,  114  Mass.  546  (1874).  In  Bum- 
stead  v.  Cook,  169  Mass.  410,  it  was  held  that  under  the  provisions  of  a  statute 
applicable  only  to  the  city  of  Northampton,  the  fee  for  entrance  to  a  sewer  did 
not  constitute  a  lien  on  the  land. 

*See  Dewey  v.  Des  Moines,  173  U.  S.  202  (1899). 


686  Taxation  in  Massachusetts 

[G.  L.  c.  80,  §§  5-10  inc. 

event,  when  an  assessment  is  invalid  and  cannot  be  collected 
by  any  legal  process,  the  city  or  town  cannot  recover  the  amount 
of  the  benefit  conferred  in  a  common  law  action  in  the  nature 
of  indebitatus  assumpsit.5 

In  collecting  an  assessment  by  enforcement  of  the  lien  the 
collector  acts  in  precisely  the  same  manner  as  in  collecting  a 
general  tax  on  real  estate,  and  the  statutes  and  decisions  upon 
the  sale  of  land,  redemption  and  the  like  are  equally  applicable.6 
If  the  assessment  exceeds  a  statutory  limit,  it  is  void  only  to  the 
extent  of  the  illegal  excess  and  the  tax  sale  is  not  invalid.7 

Remedies  for  Excessive  or  Illegal  Assessments 

There  are  three  methods  which  under  proper  conditions 
can  be  used  by  the  owner  of  land  subjected  to  a  special  assess- 
ment to  contest  the  assessment ;  petition  for  abatement,  petition 
for  writ  of  certiorari  and  action  of  contract  to  recover  back 
the  assessment  after  paying  it  under  protest.  These  remedies 
are  not  cumulative;  each  has  its  proper  sphere,  and  though 
they  overlap  to  a  certain  extent  great  care  must  be  taken  in 
each  case  to  select  the  proper  form  of  action. 

Petition  for  abatement  is  the  proceeding  to  be  adopted 
when  it  is  sought  to  contest  the  amount  of  the  assessment. 
It  is  not  a  proper  means  for  contesting  the  validity  of  the 
assessment.1 

Petition  for  certiorari  is  a  proper  proceeding  to  be  adopted 
when  it  is  sought  to  contest  the  constitutionality  of  the  statute 
under  which  the  assessment  is  levied  or  the  validity  of  the  as- 
sessment itself2  and  is  the  only  means  of  contesting  an  assess- 
ment on  account  of  some  irregularity  in  the  procedure  of  the 
appropriate  public  officials  in  laying  out  or  constructing  the 
improvement  for  which  the  assessment  was  levied  or  in  levying 
the  assessment.     It  is  not  a  proper  means  for  contesting  the 

'Boston  v.  Shaw,  1  Met.  130  (1840). 

8  See  for  example  Kelso  v.  Boston,  120  Mass.  297  (1876);  Leominster  v. 
Conant,  139  Mass.  384  (1885)  ;  Murphy  v.  Clinton,  182  Mass.  198   (1902). 

7Lynde  v.  Maiden,  166  Mass.  244   (1896). 

'Crandell  v.  Taunton,  110  Mass.  421  (1872)  ;  Snow  v.  Fitchburg,  136  Mass. 
179  (1883)  ;  Hall  v.  Staples,  166  Mass.  399,  402  (1896)  ;  Bowditch  v.  Boston,  168 
Mass.  239   (1897). 

2  Bowditch  v.  Boston,  168  Mass.  239  (1897)  ;  Weed  v.  Boston,  172  Mass.  28 
(1898). 


Betterments  687 

G.  L.  c.  80,  §§  5-10  inc.] 

amount  of  the  assessment,  even  if  its  excessiveness  was  due  to 
errors  of  law.3 

Action  of  contract  is  a  proper  means  of  contesting  a  void 
assessment.4  It  is  not  a  proper  means  of  contesting  the  amount 
of  an  assessment  or  defeating  the  assessment  on  account  of 
irregularities  in  procedure.5 

It  is  well  settled  that  a  bill  in  equity  will  not  lie  to  restrain 
a  city  or  town  or  its  collector  of  taxes  from  collecting  an  illegal 
or  invalid  special  assessment.6 

Petition  for  Certiorari 

The  function  of  a  writ  of  certiorari  is  to  correct  errors  of 
law  in  the  actions  of  a  board  or  officer  acting  judicially,  but  not 
according  to  the  course  of  the  common  law,  and  from  the  orders 
of  which  or  whom  no  appeal  lies.  A  board  or  officer  levying  or 
apportioning  special  assessments  is  acting  judicially  and  certi- 
orari will  lie  to  it  or  him.1  Certiorari  will  lie  only  to  correct  er- 
rors apparent  on  the  record,  and  if  a  petitioner  wishes  to  bring 
up  a  question  of  law  not  apparent  on  the  record  as  it  stands  he 
must  ask  that  the  record  be  extended  to  include  the  ruling  com- 
plained of.2 

The  practice  is  to  hear  the  merits  of  the  case  on  the  petition 
for  the  writ;3  and  the  respondents  should  not  file  an  answer 
signed  by  counsel  but  a  return  signed  by  them  in  person  setting 
forth  their  record.4    This  return  should  be  signed  by  the  mem- 

3  Jones  v.  Aldermen  of  Boston,  104  Mass.  461,  469  (1870)  ;  Whiting  v.  Mayor 
and  Aldermen  of  Boston,  106  Mass.  89  (1870)  ;  Prince  v.  Boston,  111  Mass.  226 
232  (1872)  ;  Grace  v.  Newton  Board  of  Health,  135  Mass.  490  (1883)  ;  Beals  v. 
James,  173  Mass.  591,  600  (1899);  Lincoln  v.  Street  Commissioners,  176  Mass. 
210  (1900). 

*Sheehan  v.  Fitchburg,  131  Mass.  523  (1881)  ;  Dexter  v.  Boston,  176  Mass. 
247   (1900)  ;  Smith  v.  Boston,  194  Mass.  31   (1907). 

6  Wright  v.  Boston,  9  Cush.  223  (1852)  ;  Butler  v.  Worcester,  112  Mass.  541 
(1873)  ;  Kelso  v.  Boston,  120  Mass.  297  (1876)  ;  Chapin  v.  Worcester,  124  Mass. 
468  (1878)  ;  Taber  v.  New  Bedford,  135  Mass.  162  (1883)  ;  Foley  v.  Haverhill, 
144  Mass.  352   (1887). 

•Brewer  v.  Springfield,  97  Mass.  152  (1867)  ;  Whiting  v.  Boston,  106  Mass. 
89  (1870);  Norton  v.  Boston,  119  Mass.  194  (1875);  Clark  v.  Worcester,  167 
Mass.  81   (1896)  ;  Greenhood  v.  MacDonald,  183  Mass.  342   (1903). 

^owditch  v.  Superintendent  of  Streets  of  Boston,  168  Mass.  239  (1897); 
Weed  v.  Mayor  and  Aldermen  of  Boston,  172  Mass.  28  (1898). 

2Tileston  v.  Street  Commissioners  of  Boston,  182  Mass.  325   (1902). 

3  Warren  v.  Street  Commissioners  of  Boston,  183  Mass.  119   (1903). 

4  Chase  v.  Aldermen  of  Springfield,  119  Mass.  556  (1876)  ;  Warren  v.  Street 
Commissioners  of  Boston,  183  Mass.  119  (1903). 


688  Taxation  in  Massachusetts 

[G.  L.  c.  80,  §§  5-10  inc. 

bers  of  the  board  in  office  at  the  time  it  is  filed  even  if  they 
were  not  in  office  when  the  proceedings  complained  of  took  place, 
as  the  members  have  official  knowledge  of  the  proceedings  of 
the  board.5  The  return  is  conclusive  of  the  facts  in  the  record 
alleged  therein.6 

The  issuance  of  the  writ  in  the  first  place  rests  in  the  discre- 
tion of  the  court  and  the  respondents  may  allege  facts  outside 
the  record  showing  that  though  the  record  is  defective  justice 
does  not  require  the  issuance  of  the  writ.  The  petitioners  may 
not  offer  evidence  to  disprove  the  record,  but  they  may  dispute 
the  extrinsic  facts  alleged.7  If  the  record  is  defective  the  re- 
spondents may  amend  it  even  after  the  petition  has  been  heard.8 

Certiorari  is  a  discretionary  writ,  and  will  not  be  issued  for 
technical  and  unimportant  defects  in  the  proceedings;9  and  it 
will  not  be  issued  for  the  gravest  irregularities  if  the  petitioner 
has  been  guilty  of  laches  in  allowing  the  public  money  to  be 
expended  without  objection  for  an  improvement  which  he  ex- 
pects to  enjoy.10 

If  after  a  hearing  a  writ  of  certiorari  is  ordered  to  issue  there 
is  nothing  to  be  done  but  to  quash  or  modify  the  proceedings 
according  as  the  record  is  wholly  or  partially  bad.  It  is  then 
too  late  to  amend  the  record  or  to  raise  questions  of  discretion. 


ii 


5  Collins  v.  Mayor  and  Aldermen  of  Holyoke,  146  Mass.  298  (1888). 

6  Fairbanks  v.  Mayor  and  Aldermen  of  Fitchburg,  132  Mass.  42  (1882)  ;  Ward 
v.  Aldermen  of  Newton,  181  Mass.  432  (1902).  A  statement  in  a  return  that 
petitioner  was  duly  served  with  notice  of  the  proceedings  upon  which  the  assess- 
ment was  based  may  be  contradicted  by  parol  evidence,  however,  just  as  the 
record  of  a  domestic  judgment  can  be  directly  impeached  for  want  of  service. 
Hall  v.  Staples,  166  Mass.  399   (1896). 

7  Fairbanks  v.  Mayor  and  Aldermen  of  Fitchburg,  132  Mass.  42  (1882)  ;  Ward 
v.  Aldermen  of  Newton,  181  Mass.  432  (1902)  ;  Janvrin  v.  Poole,  181  Mass.  463 
(1902).  By  agreeing  on  facts  inconsistent  with  their  return,  the  respondents 
waive  the  objection  that  on  a  petition  for  certiorari  the  facts  found  by  them 
cannot  be  controverted.  Jones  v.  Metropolitan  Park  Commissioners,  181  Mass. 
494   (1902). 

8  Chase  v.  Aldermen  of  Springfield,  119  Mass.  556  (1876);  Foster  v.  Park 
Commissioners,  131  Mass.  225  (1881);  Warren  v.  Street  Commissioners,  183 
Mass.  119  (1903). 

•Jones  v.  Aldermen  of  Boston,  104  Mass.  461  (1870);  Workman  v.  Wor- 
cester, 118  Mass.  168  (1875)  ;  Atkinson  v.  Newton,  169  Mass.  240  (1897)  ;  Sears 
v.  Mayor  and  Aldermen  of  Worcester,  180  Mass.  288   (1902). 

10  Whiting  v.  Mayor  and  Aldermen  of  Boston,  106  Mass.  89  (1870)  ;  Taber  v. 
New  Bedford,  135  Mass.  162  (1883)  ;  Grace  v.  Newton  Board  of  Health,  135  Mass. 
490  (1883)  ;  Atkinson  v.  Newton,  169  Mass.  240  (1897)  ;  Harwood  v.  Donovan, 
188  Mass.  487  (1905). 

"Warren  v.  Street  Commissioners,  183  Mass.  119   (1903). 


Betterments  689 

G.  L.  c.  80,  §§  5-10  inc.] 

A  person  who  seeks  to  have  an  assessment  quashed  on  peti- 
tion for  certiorari  is  not  estopped  from  maintaining  the  petition 
by  having  applied  for  an  abatement  of  the  assessment  or  for 
damages  from  the  improvement  for  which  the  assessment  was 
levied.12  Under  the  law  as  it  formerly  stood,  if  he  should  be 
obliged  to  wait  until  the  petition  for  certiorari  was  decided  and 
it  was  decided  against  him  it  might  be  too  late  to  file  the  other 
petitions.  It  is  not  believed  that  the  provisions  which  allow 
a  petition  for  abatement,13  or  for  damages,14  to  be  filed  within  six 
months  after  the  determination  of  a  suit  brought  to  attack 
the  validity  of  the  proceedings  require  the  deferment  of  such 
petitions  until  the  suit  is  disposed  of. 


Action  of  Contract  Against  the  City  or  Town 

Upon  well  settled  principles,  when  an  invalid  betterment  as- 
sessment has  been  collected  by  a  city  or  town,  the  person  who 
paid  it  may  recover  it  back  in  an  action  of  contract  against 
the  city  or  town  in  the  nature  of  an  action  for  money  had  and 
received.1 

The  action  will  not  lie  merely  because  the  assessment  is  ex- 
cessive;2 the  proper  remedy  in  such  case  is  an  application  for 
abatement.  The  action  will  not  lie  for  mere  irregularities  in  the 
procedure;  the  remedy  in  such  case  is  petition  for  certiorari.* 
When  however  the  assessment  is  wholly  void,  the  action  of  con- 
tract is  in  some  respects  the  most  advantageous  remedy,  for  the 
owner,  if  he  is  within  his  legal  rights,  cannot  be  denied  recovery 
on  account  of  laches  or  as  an  exercise  of  discretion  as  he  may 
be  in  a  petition  for  certiorari.4  He  is  not  estopped  from  recov- 
ering back  an  assessment  by  reason  of  the  fact  that  he  has 

12  Hitchcock  v.  Aldermen  of  Springfield,  121  Mass.  382  (1876). 

13  G.  L.  c.  80,  §8,  infra,  page  695. 
,4G.  L.  c.  79,  §18. 

lSheehan  v.  Fitchburg,  131  Mass.  523  (1881)  ;  Dexter  v.  Boston,  176  Mass. 
247  (1900)  ;  Smith  v.  Boston,  194  Mass.  31   (1907),  and  see  also  supra,  page  400. 

2  Wright  v.  Boston,  9  Cush.  223  (1852)  ;  Butler  v.  Worcester,  112  Mass.  541 
(1873)  ;  Chapin  v.  Worcester,  124  Mass.  468  (1878).  This  principle  does  not  pre- 
vent the  recovery  back  of  an  unconstitutional  sewer  assessment,  although  it  was 
collected  by  adding  part  of  the  assessment  to  the  general  tax  bill  under  author- 
ity of  statute.  Dexter  v.  Boston,  176  Mass.  247  (1900). 

'Kelso  v.  Boston,  120  Mass.  297  (1876)  ;  Taber  v.  New  Bedford,  135  Mass. 
162  (1883)  ;  Foley  v.  Haverhill,  144  Mass.  352  (1887). 

*  Smith  v.  Boston,  194  Mass.  31  (1907). 


690  Taxation  in  Massachusetts 

[G-.  L.  c.  80,  §§  5-10  inc. 

made  use  of  the  improvement  for  which  the  assessment  was 
levied.5 

It  has  been  held  that  the  statutory  provisions  restricting 
the  action  of  contract  to  recover  back  a  tax6  apply  to  special 
assessments  as  well  as  to  general  taxation,  and  accordingly  to 
justify  such  an  action  payment  must  be  under  duress  or  pro- 
test and  suit  must  be  begun  within  three  months  of  the  date 
of  payment.7 

What  Irregularity  Invalidates  an  Assessment 

To  justify  a  special  assessment  there  must  be  a  public  im- 
provement laid  out  and  constructed  by  authority  of  law.  It 
does  not  follow  however  that  an  owner  of  land  assessed  for  the 
benefit  arising  from  a  new  public  work  can  defeat  the  assess- 
ment by  finding  a  flaw  in  the  proceedings  by  which  it  was  laid 
out  or  a  failure  to  comply  in  all  respects  with  the  requirements 
of  the  statutes  relating  to  the  construction  of  such  works.  It  is 
of  course  clear  that  such  total  disregard  of  the  statutes  providing 
for  the  laying  out  of  public  works  as  would  invalidate  the  lay- 
ing out  itself,  so  that  attempted  construction  thereunder  would 
constitute  a  trespass  and  the  proceedings  themselves  could  be 
collaterally  impeached  whenever  their  validity  came  before  a 
court,  would  render  any  special  assessment  attempted  to  be 
levied  for  works  so  laid  out  wholly  invalid.1  Mere  violation  of 
less  essential  requirements  not  relating  to  the  assessment  itself 
does  not  necessarily  invalidate  the  assessment2  unless  the  stat- 
utory requirements  violated  were  made  for  the  protection  of 

'Sheehan  v.  Fitchburg,  131  Mass.  523  (1881);  Smith  v.  Boston,  194  Mass. 
31  (1907). 

6  G.  L.  c.  60,  §98,  supra,  page  400. 

7  Wheatland  v.  Boston,  202  Mass.  258   (1909). 

1  Sheehan  v.  Fitchburg,  131  Mass.  523  (1881)  (layout  so  vague  that  it  was 
not  clear  what  land  was  taken ) . 

2Kelso  v.  Boston,  120  Mass.  297  (1876  (failure  to  keep  on  file  plan  of  all 
sewers  in  city)  ;  Fairbanks  v.  Mayer  and  Aldermen  of  Fitchburg,  132  Mass.  42 
(1882)  (cost  of  sewer  not  stated  but  ascertainable  by  computation)  ;  Leominster 
v.  Conant,  139  Mass.  384  (1885)  (sewer  constructed  before  laying  out,  and 
slight  variation  in  size  of  pipe);  Collins  v.  Holyoke,  146  Mass.  298  (1888) 
(failure  of  superintendent  of  sewers  to  report  cost  to  mayor)  ;  Masonic  Building 
Association  v.  Brownell,  164  Mass.  306  (1895)  (requisite  allegations  in  two 
separate  orders);  Beals  v.  James,  173  Mass.  591  (1899)  (construction  of  tem- 
porary catch-basins)  ;  Corcoran  v.  Aldermen  of  Cambridge,  199  Mass.  5  (1908) 
(failure  of  superintendent  of  streets  to  certify  data  to  assessors  when  they  had 
the  facts  before  them) . 


Betterments  691 

G.L.  c.  80,  §§5-10  inc.] 

the  taxpayer.  If  he  can  show  that  such  requirements  were 
materially  violated  he  may  have  the  assessment  set  aside  without 
proof  that  he  has  actually  suffered  damage.3  He  cannot  how- 
ever defeat  the  assessment  by  evidence  of  negligence  and  delay 
in  the  construction  of  the  work  if  no  statute  was  violated.4 
When  the  statute  under  which  a  public  work  is  constructed 
authorizes  the  assessment  of  a  proportional  share  of  the  entire 
cost  and  part  of  the  cost  is  incurred  unlawfully  but  no  more  is 
actually  assessed  than  was  lawfully  expended,  the  assessment 
is  invalid;5  but  when  the  statute  authorizes  the  fixing  of  a 
certain  part  of  the  cost  as  the  assessable  cost  and  the  sum  fixed 
is  less  than  the  amount  lawfully  expended  it  is  immaterial 
whether  the  rest  of  the  expenditures  were  incurred  lawfully 
or  not.6 

The  board  which  is  authorized  by  statute  to  make  an  assess- 
ment cannot  delegate  the  power  to  some  other  official;7  but  an 
assessment  is  not  invalid  merely  because  the  proper  board  em- 
ployed assistance  in  making  it  if  the  assessment  itself  is  finally 
determined  by  the  board.8  An  error  or  irregularity  in  the  assess- 
ment proceedings  themselves  which  does  no  harm  to  the  persons 
assessed  and  does  not  involve  the  violation  of  a  statute  enacted 
for  their  protection  does  not  invalidate  the  assessment.9  The 
record  of  the  proceedings  is  not  defective  merely  because  it  fails 
to  exclude  the  possibility  of  error;  there  must  be  error  apparent 
on  its  face.10  If  the  person  assessed  is  in  doubt  as  to  the  validity 
of  the  assessment  on  account  of  the  ambiguity  or  insufficiency 
of  the  record  he  must  ask  to  have  the  record  extended;  he  can- 
not assume  that  it  is  invalid  and  demand  that  it  be  quashed.11 

3Bowditch  v.  Superintendent  of  Streets,  168  Mass.  239  (1897);  Warren  v. 
Street  Commissioners,  181  Mass.  6  (1902).  In  both  of  these  cases  statutory  re- 
quirements as  to  making  contracts  for  construction  were  not  followed. 

'Whiting  v.  Mayer  and  Aldermen  of  Boston,  106  Mass.  89   (1870). 
.  B  Warren  v.  Street  Commissioners,  181  Mass.  6  (1902). 

6  Gardiner  v.  Street  Commissioners,  188  Mass.  223  (1905)  ;  Morse  v.  Street 
Commissioners,  197  Mass.  292   (1908). 

7Boylston  Market  Association  v.  Boston,  113  Mass.  528  (1873). 

8  Collins  v.  Mayor  and  Aldermen  of  Holyoke,  146  Mass.  298  (1888)  ;  Sears  v. 
Aldermen  of  Boston,  173  Mass.  71    (1899). 

"Whiting  v.  Mayor  and  Aldermen  of  Boston,  106  Mass.  89  (1870)  ;  Keith  v. 
Boston,  120  Mass.  108  (1876). 

10  Jones  v.  Aldermen  of  Boston,  104  Mass.  461  (1870)  ;  Foley  v.  Haverhill, 
144  Mass.  352  (1887). 

"Ward  v.  Aldermen  of  Newton,  181  Mass.  432  (1902);  Tileston  v.  Street 
Commissioners  of  Boston,  182  Mass.  325  (1902). 


692  Taxation  in  Massachusetts 

[G.  L.  c.  80,  §  5 

Inasmuch  as  a  special  assessment  is  generally  levied  upon  the 
land  and  not  upon  the  owner,  if  the  land  is  properly  described, 
failure  to  name  the  owner  correctly  does  not  invalidate  the  as- 
sessment.12 A  description  of  the  land  sufficient  to  operate  as  a 
good  conveyance  is  sufficient  to  base  a  betterment  assessment 
upon.13  If  the  name  of  the  owner  is  used  as  a  means  of  describ- 
ing the  estate  an  error  therein  does  not  invalidate  the  assess- 
ment if  no  one  was  misled  or  prejudiced  thereby.14 

Petition  for  Abatement 

Section  5.  The  owner  of  any  real  estate  upon  which  betterments 
have  been  assessed  may,  within  six  months  after  notice  of  such  assess- 
ment has  been  sent  out  by  the  collector,  file  with  the  board  a  petition 
for  an  abatement  thereof,  and  the  board  within  sixty  days  after  such 
filing  shall  grant  such  abatement  as  may  be  necessary  to  make  such 
assessment  conform  to  section  one.  Such  petition  may  be  filed  with 
the  clerk  or  secretary  of  the  board,  or  delivered  by  mail  or  other- 
wise at  their  office.  The  board  shall  within  ten  days  after  their 
decision  upon  the  petition  give  written  notice  thereof  to  the  petitioner. 
If  an  assessment  is  abated  by  the  board  the  assessment  so  determined 
shall  stand  as  the  assessment  upon  the  land,  and  if  it  has  not  been 
paid  shall  be  collected  in  the  same  manner  as  the  original  assessment. 
If  the  assessment  has  been  paid,  the  person  by  whom  it  was  paid 
shall  be  reimbursed  by  the  body  politic  on  behalf  of  which  it  was 
assessed  to  the  amount  of  the  abatement  allowed,  with  interest  at  the 
rate  of  four  per  cent  per  annum  from  the  time  of  payment. 

The  street  betterment  act  contained  no  provision  authoriz- 
ing an  application  for  abatement  to  be  made  directly  to  the 
board  which  levied  the  assessment,  and  the  only  remedy  of  a 
person  aggrieved  by  the  amount  of  the  assessment  was  to  file  a 
petition  in  court  asking  for  a  revision  of  the  assessment.  The 
statutes  relating  to  sewer  assessments  and  various  special  acts 
contained  provisions  for  application  for  abatement  to  the  board 
which  levied  the  assessment.  Even  when  a  board  levies  a  bet- 
terment assessment  after  due  consideration  of  the  facts  in  re- 
lation to  each  estate,  it  may  wish  to  modify  its  conclusion  after 

"Smith  v.  Carney,  127  Mass.  179  (1879)  ;  Masonic  Building  Association  v. 
Brownell,  164  Mass.  306  (1895). 

"Masonic  Building  Association  v.  Brownell,  164  Mass.  306   (1895). 
"Masonic  Building  Association  v.  Brownell,  164  Mass.  306   (1895). 


Betterments  693 

G.  L.  c.  80,  §§  5,  6,  7] 

hearing  such  evidence  as  an  owner  may  bring  before  it,  and 
when  an  assessment  is  made  by  some  arbitrary  measure,  as  in 
the  case  of  sewer  and  sidewalk  assessments,  the  board  should  cer- 
tainly have  power  to  correct  any  injustice  it  may  have  done. 
The  general  betterment  act  of  1918  therefore  contained  a  pro- 
vision requiring  in  all  cases,  as  the  first  step  in  proceeding  for 
a  reduction  of  a  betterment  assessment,  an  application  for  abate- 
ment to  the  board  which  levied  it,  with  a  right  of  appeal  to  the 
court  in  case  the  decision  of  the  board  was  unfavorable. 

Extension  of  Time  for  Filing  Petition 

Section  6.  If  a  suit  in  which  the  validity  of  an  assessment  is 
drawn  in  question  is  brought  within  the  time  for  filing  a  petition  to 
the  board  for  the  abatement  thereof  or  within  six  months  after  the 
determination  of  an  earlier  suit  involving  the  same  question,  brought 
within  the  time  for  filing  such  petition,  which  failed  for  want  of  juris- 
diction, defect  of  form  or  other  like  cause  not  decisive  of  the  merits 
of  the  controversy,  the  petition  may  be  filed  within  six  months  after 
the  final  determination  of  such  suit. 

The  foregoing  section  was  first  introduced  in  the  general 
betterment  act  of  1918,  in  order  that  the  procedure  in  better- 
ment proceedings  might  correspond  as  far  as  practicable  with 
those  in  eminent  domain  cases.  The  object  of  the  statute  is 
to  authorize  the  deferment  of  petitions  for  abatement  in  cases 
in  which  the  validity  of  the  assessment  is  drawn  in  question. 

Appeal  to  the  Superior  Court 

Section  7.  A  person  who  is  aggrieved  by  the  refusal  of  the 
board  to  abate  an  assessment  in  whole  or  in  part  may  within  thirty 
days  after  notice  of  their  decision  appeal  therefrom  by  filing  a 
petition  for  the  abatement  of  such  assessment  in  the  superior  court 
for  the  county  in  which  the  land  assessed  is  situated.  If  a  single 
parcel  of  land  so  assessed  lies  in  more  than  one  county  the  petition 
may  be  filed  in  the  superior  court  for  either  such  county,  and  the 
court  in  which  such  petition  is  first  filed  shall  have  exclusive  juris- 
diction thereof. 

This  section  in  substance  continues  the  remedy  which  had 
been  in  force  for  many  years  in  the  case  of  a  person  aggrieved 


694  Taxation  in  Massachusetts   . 

[G.  L.  c.  80,  §  7 

by  the  amount  of  his  assessment,  except  that  the  petition  to  the 
superior  court  is  now  in  every  case  an  appeal  from  the  action 
of  the  board  which  levied  the  assessment  upon  a  petition  for 
abatement  filed  directly  to  such  board.  The  time  for  filing 
the  petition  in  court  is  therefore  based  upon  the  date  of  the 
notice  of  the  decision  of  such  board,  and,  as  in  the  case  of  ap- 
peals from  boards  of  assessors  from  their  refusal  to  abate  general 
taxes,  is  limited  to  thirty  days  from  the  date  of  such  notice. 
After  the  expiration  of  the  statutory  period  the  court  has  no 
jurisdiction  of  the  subject-matter  of  a  petition,  and  the  want  of 
jurisdiction  may  be  taken  advantage  of  at  any  time  before 
judgment.1 

A  person  assessed  is  not  estopped  from  applying  for  an 
abatement  by  asking  that  the  assessment  be  apportioned,2  or  by 
petitioning  for  a  writ  of  certiorari  to  quash  the  assessment  on  the 
ground  of  invalidity.  He  cannot  however  base  an  application 
for  abatement  on  the  invalidity  of  the  assessment.3  If  after 
the  petition  for  abatement  is  entered  and  before  it  is  heard  the 
assessment  is  quashed  in  certiorari  proceedings,  it  is  proper 
to  dismiss  the  petition  for  abatement  without  costs  to  either 
party.4 

At  the  hearing  on  petition  for  abatement  the  burden  of  proof 
is  on  the  petitioner  to  show  that  the  assessment  is  excessive 
and  should  not  stand.5  In  ascertaining  the  true  amount  of 
benefit,  the  course  of  trial  and  the  character  of  the  evidence  is 
very  similar  to  that  at  a  trial  for  damages  to  land  by  the  laying 
out  of  a  public  improvement,  and  the  rules  of  evidence  are 
much  the  same.6    The  benefit  is  to  be  estimated  as  of  the  date 

^usty  v.  Lowell,  117  Mass.  78  (1875). 

2  Gardner  v.  Boston,  106  Mass.  549  (1871). 

3Crandell  v.  Taunton,  110  Mass.  421  (1872)  ;  Bigelow  v.  Boston,  120  Mass. 
326  (1876)  ;  Breed  v.  Lynn,  126  Mass.  290  (1879)  ;  Snow  v.  Fitchburg,  136  Mass. 
179  (1883). 

*  Breed  v.  Lynn,  126  Mass.  290  (1879). 

5  Bigelow  v.  Boston,  120  Mass.  326  (1876)  ;  Beals  v.  Brookline,  174  Mass.  1 
(1899)  ;  Driscoll  v.  Northbridge,  210  Mass.  151   (1911). 

6  For  the  rules  of  evidence  in  eminent  domain  proceedings  see  Nichols, 
Eminent  Domain,  2d  ed.  Chapter  XXV.  See  also  the  following  decisions  on 
evidence  in  betterment  proceedings.  In  Alden  v.  Springfield,  121  Mass.  27  (1876), 
it  was  held  that  while  petitioner  may  introduce  evidence  tending  to  show  that 
the  assessment  upon  his  land  was  too  great,  he  is  not  entitled  to  inquire  as  to 
the  proportion  of  the  benefit  to  the  lands  of  himself  and  the  other  abutters  on 
the  way,  as  compared  with  the  benefit  to  real  estate  generally  in  the  city.  Such 
an  inquiry  might  properly  be  excluded  as  tending  to  confuse  the  jury;  and  that 


Betterments  695 

G.  L.  c.  80,  §§  7,  8] 

of  the  original  order;7  when  the  assessment  cannot  be  levied 
until  the  work  is  completed  the  jury  is  to  consider  what  the 
improvement  actually  consists  of  and  not  what  was  planned  in 
the  laying  out.8 

The  petitioner  is  not  limited  to  showing  that  the  assess- 
ment exceeded  the  actual  benefit;  but  he  may  show  that  he 
has  suffered  by  being  obliged  to  pay  a  disproportionate  amount 
of  the  cost  even  if  the  special  benefit  was  not  exceeded.9 

Death  of  Person  Entitled  to  Petition 

Section  8.  If  a  person  who  is  entitled  to  petition  for  an  abate- 
ment under  this  chapter  dies  within  the  time  limited  for  such  petition 
without  having  filed  the  same,  his  executor,  administrator,  heir  or 


petitioner  cannot  introduce  evidence  that  a  culvert  which  occasioned  part  of  the 
expense  in  the  widening  of  the  street  was  of  no  benefit  to  him.  The  question  is 
as  to  the  benefit  of  the  whole  construction  of  the  street,  and  petitioner  had  no 
right  to  introduce  evidence  as  to  the  benefit  resulting  from  any  particular  piece 
of  work  done  in  the  course  of  such  construction. 

In  Treadwell  v.  Boston,  123  Mass.  23  (1877),  it  was  held  that,  the  question 
being  the  permanent  advantage,  if  any,  the  temporary  inconvenience  caused  by 
the  construction  was  so  insignificant  and  remote  that  it  might  properly  be  ex- 
cluded as  an  element.  Evidence  that  the  most  beneficial  use  of  a  lot  assessed 
would  be  to  erect  buildings  fronting  on  a  street  not  the  one  widened  is,  however, 
admissible;  it  tends  to  reduce  the  benefit  likely  to  accrue  from  the  widening  of  a 
street  that  would  be  only  a  side  street  so  far  as  the  lot  in  question  was  con- 
cerned. 

In  Beals  v.  Brookline,  174  Mass.  1  (1899),  it  was  held  that  evidence  of  the 
cost  of  a  covered  channel  by  a  different  plan  of  location  is  inadmissible,  as  open- 
ing up  collateral  questions.  In  the  absence  of  anything  to  the  contrary  it  is  to 
be  assumed  that  the  plan  adopted  by  the  selectmen  was  proper  and  reasonable. 
Evidence  that  on  account  of  the  taking  petititioner  was  not  able  to  cut  his  land 
up  into  lots  of  the  most  desirable  shape  was  inadmissible  as  too  remote. 

In  Driscoll  v.  Northbridge,  210  Mass.  151  (1911),  it  was  said  by  the  court 
that  the  inquiry  is  how  much  has  the  particular  public  improvement  added  to  the 
fair  market  value  of  the  property,  as  between  a  willing  seller  and  a  willing 
buyer,  with  reference  to  all  the  uses  to  which  it  is  reasonably  adapted  and  for 
which  it  is  plainly  available,  prospective  as  well  as  present,  by  strangers  as  well 
as  by  the  owner.  Chances  and  probabilities  of  future  use,  if  sufficiently  near  in 
time  and  definite  in  kind  to  be  of  practical  importance,  enter  into  present  mar- 
ket value  and  so  far  as  they  enhance  or  diminish  it  are  given  full  weight.  But 
where  they  are  so  remote  to  rest  chiefly  in  the  imagination,  and  do  not  in  fact 
influence  the  price  which  customers  would  be  willing  to  pay  in  a  present  sale, 
they  cannot  be  the  basis  of  a  determination  of  benefit  or  value. 

'Jones  v.  Aldermen  of  Boston,  104  Mass.  461  (1870);  Boston  Seamen's 
Friend  Society  v.  Boston,  116  Mass.  181  (1874)  ;  Treadwell  v.  Boston,  123  Mass. 
23   (1877). 

8  Lincoln  v.  Worcester,  122  Mass.  119   (1877). 

•Whiting  v.  Boston,  106  Mass.  89,  97  (1870)  ;  Prince  v.  Boston,  111  Mass. 
226,  232  (1872)  ;  Keith  v.  Boston,  120  Mass.  108  (1876)  ;  Lincoln  v.  Street  Com- 
missioners, 176  Mass.  210  (1900). 


696  Taxation  in  Massachusetts 

[G.  L.  c.  80,  §§  8, 9 

devisee,  if  interested,  may,  within  one  year  after  his  interest  vests, 

file  such  petition  in  the  same  manner  and  with  the  same  effect  as  if 

filed  by  the  deceased  in  his  lifetime. 

This  section  was  taken  from  a  provision  which  had  been  in 
force  since  1859,  but  had  previously  been  contained  in  the  chap- 
ter on  survival  of  actions.  If  the  assessment  has  been  paid, 
the  right  to  an  abatement  and  partial  refund  is  a  chose  in  ac- 
tion which  passes  to  the  executor  or  administrator  and  not  to 
the  heir  or  devisee,  or  to  any  grantee  of  the  land;1  but  if  the 
assessment  has  not  been  paid,  as  it  was  not  a  personal  liability 
of  the  decedent  but  a  charge  on  the  land,  it  would  seem  that 
the  right  to  petition  would  lie  in  the  heir  or  devisee,2  unless 
it  was  necessary  for  the  administrator  to  sell  the  land  in  order  to 
pay  debts  or  legacies  or  otherwise  to  comply  with  the  terms  of 
the  will.3 

Procedure  on  Petition  to  Superior  Court 

Section  9.  Upon  the  filing  of  a  petition  under  section  seven, 
process  shall  issue  and  service  be  made  as  in  suits  in  equity  upon  the 
body  politic  on  behalf  of  which  the  assessment  was  made.  Any  de- 
fence to  the  petition  not  relating  to  the  amount  of  the  assessment  must 
be  pleaded  within  thirty  days  of  the  return  day  of  the  subpoena ;  but 
no  answer  relating  solely  to  the  amount  of  the  assessment  shall  be 
filed,  and  there  shall  be  no  default  for  failure  to  enter  an  appearance. 
The  trial  shall  be  by  the  court  unless  one  of  the  parties  within  the 
time  prescribed  in  actions  at  law  files  a  notice  that  he  desires  a  trial 
by  jury;  and  the  court  may  appoint  an  auditor.  Interrogatories  may 
be  filed  with  the  same  effect  as  in  actions  at  law.  The  court,  at  the 
request  of  any  party,  shall  advance  the  petition  so  that  it  may  be 
heard  and  determined  with  as  little  delay  as  posible.  In  case  peti- 
tions have  been  filed  for  the  assessment  of  damages  and  for  the 
abatement  of  betterments  with  respect  to  the  same  parcel  of  land 
and  the  same  public  improvement,  the  petitions  shall  be  tried  together. 
In  ease  of  trial  by  jury,  if  either  party  requests  it  the  jury  shall 
view  the  premises.  If  the  assessment  is  not  reduced  the  respondent 
shall  recover  costs  and  an  execution  shall  issue  therefor  as  in  actions 

JSee  Webster  v.  Lowell,  139  Mass.  172  (1885). 

2  See  Crandell  v.  Taunton,  110  Mass.  421  (1872)  ;  Barnstable  Savings  Bank 
v.  Boston,  127  Mass.  254  (1879). 

8  See  Old  Colony  Trust  Co.  v.  Treasurer  &  Receiver  General,      Mass.      (1921). 


Betterments  697 

G.  L.  c.-80,  §§9-ll] 

at  law;  but  if  the  assessment  is  reduced  the  petitioner  shall  recover 
judgment  for  costs,  and  the  assessment  so  determined  shall  stand  as 
the  assessment  upon  the  land,  and  if  it  has  not  been  paid  shall 
be  collected  in  the  manner  provided  for  an  original  assessment.  If 
the  assessment  has  been  paid  judgment  shall  be  entered  for  the  peti- 
tioner for  the  amount  of  the  reduction,  with  interest  at  the  rate  of 
four  per  cent  per  annum  from  the  time  of  payment. 

This  section  was  designed  in  part  to  provide  express  rules 
in  regard  to  procedure,  which  had  been  given  very  little  atten- 
tion in  the  earlier  statutes  and  in  part  to  bring  the  procedure  in 
betterment  petitions  as  far  as  possible  in  harmony  with  that 
provided  in  eminent  domain  cases,  and  thus  to  introduce  sub- 
stantive changes  which  it  was  believed  would  prove  advanta- 
geous. It  is  to  be  noted  that  the  trial  may  be  without  jury;  and 
the  case  may  be  tried  with  a  petition  for  damages  to  the  same 
land  arising  from  the  same  public  improvement. 

Appeal  to  the  County  Commissioners 

Section  10.  A  person  who  is  aggrieved  by  the  refusal  of  a  board 
of  officers  of  a  city,  town  or  district  to  abate  an  assessment  may,  in- 
stead of  pursuing  the  remedy  provided  by  section  seven,  appeal  within 
the  time  limited  therein  to  the  county  commissioners  of  the  county  in 
which  the  land  assessed  is  situated,  and  the  county  commissioners  shall 
hear  the  parties,  and  shall  have  the  same  powers  and  duties  with 
respect  to  the  abatement  of  such  assessment  as  the  board  by  which  it 
was  assessed,  and  may  make  an  order  as  to  costs.  The  decision  of  the 
county  commissioners  shall  be  final. 

The  right  of  appeal  to  county  commissioners,  which  had  pre- 
viously existed  in  the  case  of  sewer  assessments,  was  included 
in  the  general  betterment  act  of  1918,  for  the  reason  that  in 
some  sections  of  the  state  it  is  a  more  convenient  remedy  than 
an  appeal  to  the  court. 

Contribution  by  Lessee 

Section  11.  If  an  assessment  is  made  upon  land  the  whole  or 
part  of  which  is  leased,  the  owner  shall  pay  the  assessment,  and  may 
collect  of  the  lessee  an  additional  rent  for  the  portion  so  leased  equal 
to  ten  per  cent  per  annum  on  that  proportion  of  the  amount  paid 


698  Taxation  in  Massachusetts 

[G.L.c.-80,§11 

which  the  value  of  the  leased  portion  bears  to  that  of  the  whole  estate, 
after  deducting  from  the  whole  amount  any  money  received  for 
damages  to  such  land  in  excess  of  what  he  has  necessarily  expended 
thereon  by  reason  of  such  damages.  A  lessee  aggrieved  by  the  im- 
position of  this  burden  may,  within  six  months  from  the  time  demand 
is  made  upon  him  for  such  additional  rent,  file  a  petition  in  the 
superior  court  for  the  county  in  which  the  land  is  situated,  to  de- 
termine the  proportion  of  the  assessment  which  he  ought  to  bear,  and 
the  proportion  determined  upon  the  petition  shall  be  substituted  for 
the  proportion  provided  by  this  section.  If  such  proportion  is  reduced 
the  lessee  shall  recover  costs  from  the  owner;  otherwise  the  owner 
shall  recover  costs  from  the  lessee. 

In  the  absence  of  special  provision  by  statute  or  contract  it 
is  the  duty  of  the  lessor  to  pay  a  betterment  assessment  upon 
leased  land,1  and  if  it  is  understood  between  the  parties  to  a 
lease  that  such  burdens  are  to  fall  upon  the  lessee  it  is  well  to 
have  this  point  made  clear  by  appropriate  phraseology.  When 
betterment  assessments  first  became  common  frequent  contro- 
versies arose  between  landlords  and  tenants  whether  a  covenant 
by  the  latter  to  pay  taxes  and  duties  or  other  more  or  less  synony- 
mous expressions  included  betterment  assessments.  When  the 
assessment  was  upon  the  owner  and  not  upon  the  land  the  courts 
were  not  inclined  to  permit  him  to  throw  the  burden  upon  the 
tenant  if  the  language  of  the  covenant  left  the  matter  open  to 
doubt;2  but  the  courts  have  been  very  liberal  in  construing 
agreements  by  the  lessee  to  pay  taxes  and  similar  impositions 
upon  the  demised  premises  so  as  to  include  betterment  assess- 
ments levied  on  the  land  itself,  even  when  the  lease  was  made 
before  there  was  any  general  statute  in  force  authorizing  the 
levying  of  such  assessments.3 

When  a  lessee  has  covenanted  to  pay  assessments  levied  dur- 
ing the  term  of  the  lease,  he  is  bound  to  pay  such  an  assess- 
ment originally  assessed  during  the  term  although  it  is  revised 

'Twycross  v.  Fitchburg  R.  R.  Co.,  10  Gray  293  (1858)  ;  Snow  v.  Rice,  207 
Mass.  331   (1911). 

2Torrey  v.  Wallis,  3  Cush.  442  (1849);  Twycross  v.  Fitchburg  R.  R.  Co., 
10  Gray  293  (1858). 

3  In  the  following  cases  a  covenant  by  the  lessee  to  pay  all  taxes  and  assess- 
ments, or  all  taxes  and  duties,  was  held  to  include  betterment  assessments. 
Codman  v.  Johnson,  104  Mass.  491  (1870);  Walker  v.  Whittemore,  112  Mass. 
187  (1873)  ;  Curtis  v.  Pierce,  115  Mass.  186  (1874)  ;  Blake  v.  Baker,  115  Mass. 
1888  (1874)  ;  Simonds  v.  Turner,  120  Mass.  328  (1876). 


Betterments  699 

G.L.c.80,§§11,  12] 

and  reduced  after  the  expiration  of  the  lease.4  A  covenant 
by  the  lessee  to  pay  assessments  runs  with  the  land  and  may  be 
enforced  against  an  assignee  of  the  lease  who  is  in  possession 
when  an  assessment  is  levied.5 

In  1871  a  statute  which  is  in  substance  section  eleven  as 
appearing  above  was  enacted.  This  statute  did  not,  it  was 
held,  affect  existing  covenants,6  nor  does  it,  it  is  .to  be  supposed, 
prevent  the  making  of  special  agreements  between  lessor  and 
lessee  to  apportion  betterments  in  a  different  manner.  The 
statute,  it  will  be  noted,  gives  the  lessor  no  right  to  add  to  the 
lessee's  rent  until  he  has  paid  the  assessment,  and  if  he  delays 
payment  by  contesting  the  amount  of  the  assessment  until  after 
the  lease  expires,  he  has  no  right  to  charge  the  lessee  with  any 
portion  of  what  he  has  finally  paid.7 

The  statute  as  originally  enacted  applied  only  to  better- 
ments for  highways,  but  in  the  general  betterment  act  of  1918 
it  was  extended  to  all  betterment  assessments.  Under  the 
original  act  the  addition  to  the  rent  was  imposed  arbitrarily, 
without  regard  to  the  actual  benefit  to  the  tenant,  and  the 
statute  was  thus  of  doubtful  constitutionality.  This  objection 
was  removed  by  adding  a  provision  authorizing  the  tenant  to 
have  the  addition  to  his  rent  modified  by  the  court  to  conform 
to  the  actual  benefit  to  the  tenant.  Although  this  remedy  will 
probably  rarely  be  invoked,  its  existence  will  prevent  injustice 
in  some  cases  and  removes  all  doubt  as  to  the  constitutionality 
of  the  statute. 

Duration  of  Lien 

Section  12.  Assessments  made  under  this  chapter  shall  constitute 
a  lien  upon  the  land  assessed.  The  lien  shall  take  effect  upon  the 
recording  of  the  order  stating  that  betterments  are  to  be  assessed  for 
the  improvement,  and  shall  continue  for  two  years  after  the  assess- 
ment is  made,  or,  if  an  assessment  has  been  apportioned,  for  two  years 
after  the  last  portion  is  payable,  unless  sooner  paid.  If  the  validity 
of  an  assessment  made  under  this  chapter  is  called  in  question  in 
any  legal  proceeding  to  which  the  board  which  made  the  assessment 

4 Blake  v.  Baker,  115  Mass.  188  (1874). 
'Torrey  v.  Wallis,  3  Cush.  442  (1849). 

'Walker  v.  Whittemore,  112  Mass.  187  (1873)  ;  Curtis  v.  Pierce,  115  Mass. 
186  (1874). 

7  Snow  v.  Rice,  207  Mass.  331   (1911). 


700  Taxation  in  Massachusetts 

[G.  L.  c.  80,  §§  12, 13 
or  the  body  politic  for  the  benefit  of  which  it  was  made  is  a  party, 
instituted  prior  to  the  expiration  of  the  lien  therefor,  the  lien  shall 
continue  until  one  year  after  the  validity  of  the  assessment  is  finally 
determined. 

This  section  was  enacted  in  the  general  betterment  law  of 
1918  in  substantial  accordance  with  the  provisions  previously 
in  force  in  respect  to  highway  betterments  and  sewer  assess- 
ments, with  this  important  difference,  that  under  the  present  law 
the  lien  does  not  take  effect  until  the  order  stating  that  better- 
ments are  to  be  assessed  for  the  improvement  is  recorded  in  the 
registry  of  deeds,  whereas  under  the  earlier  statutes  the  lien 
went  into  effect  as  soon  as  the  order  was  adopted,1  without  ref- 
erence to  the  recording  of  the  order,  which  in  most  instances 
was  not  required  at  all. 

In  collecting  an  assessment  by  enforcement  of  the  lien  the 
collector  acts  in  the  same  manner  as  in  collecting  the  general 
tax  on  real  estate,  and  the  statutes  and  decisions  relative  to  the 
sale  of  land  for  non-payment  of  taxes,  redemption,  foreclosure 
and  the  like  are  applicable  to  special  assessments.2 

Interest  and  Apportionment 

Section  13.  Assessments  made  under  this  chapter  shall  bear 
interest  at  the  rate  of  four  per  cent  per  annum  from  the  thirtieth  day 
after  the  assessment  list  has  been  committed  to  the  collector.  If  at 
any  time  before  demand  for  payment  by  the  collector  the  owner  of 
land  assessed  gives  notice  to  the  board  to  apportion  such  assessment 
such  board  shall,  and  in  any  other  case  may,  apportion  the  same  into 
such  number  of  equal  portions,  not  exceeding  ten,  as  the  owner  shall  in 
his  notice  request ;  but  no  one  of  said  portions  shall  be  less  than  five 
dollars.  The  board  shall  certify  such  apportionment  to  the  collector, 
and  he  shall  add  to  each  annual  tax  bill  upon  the  land  so  assessed  one 
of  such  portions  until  the  whole  assessment  has  been  paid.  He  shall 
also  add  to  the  first  such  bill  interest  on  such  assessment  to  the  last 
day  of  October  of  such  year,  and  in  the  bill  for  each  year  thereafter 
one  year's  interest  on  the  amount  of  the  assessment  remaining  un- 
paid, or,  if  the  parcel  and  the  assessment  thereon  have  been  divided 
as  hereinafter  provided,  he  shall  include  the  proportionate  part  of 
such  apportionment  in  the  annual  tax  bills  upon  the  parcels  into  which 

1  See  G.  L.  c.  80,  §2,  supra,  page  681. 

*  See  G.  L.  c.  60,  §§37-86,  inc.,  supra,  pages  346  to  392,  inc. 


Betterments  701 

G.  L.  c.  80,  §§  13, 14] 

the  land  has  been  divided.  Any  portion  of  an  assessment  remaining 
unpaid  may  be  paid  at  any  one  time,  notwithstanding  a  prior  appor- 
tionment. 

The  rate  of  interest  upon  unpaid  special  assessments, 
whether  apportioned  or  not,  was  reduced  in  1918  from  six  to 
four  per  cent  to  conform  to  the  corresponding  provision  in  the 
eminent  domain  act,  the  higher  rate  having  frequently  operated 
to  induce  land  owners  to  delay  as  long  as  possible  the  final  de- 
termination of  proceedings  for  the  determination  of  damages 
by  the  taking  of  their  land  by  eminent  domain  in  order  to  have 
the  benefit  of  what  was  then  considered  a  high  rate  of  interest. 
Almost  immediately  interest  rates  rose  as  a  result  of  war  con- 
ditions, so  that  at  present  cities  and  towns  which  issue  bonds  to 
meet  the  cost  of  a  public  improvement  paid  for  by  betterment 
assessments  are  .often  obliged  to  pay  a  higher  rate  of  interest 
on  the  bonds  than  they  receive  upon  the  deferred  installments 
of  the  apportioned  betterment  assessments. 

The  provisions  of  section  thirteen  in  regard  to  apportion- 
ment follow  in  general  the  previous  statutes,  but  were  intended 
to  provide  a  simple  and  uniform  system  in  place  of  the  con- 
fusing and  inconsistent  provisions  previously  in  force. 

An  owner  of  land  assessed  who  asks  for  an  apportionment 
does  not  thereby  forfeit  his  right  to  apply  for  an  abatement 
of  the  assessment.1  '  The  request  for  apportionment  must  be 
made  in  a  much  more  limited  time  than  the  petition  for  abate- 
ment and  it  is  not  to  be  supposed  that  the  legislature  intended 
to  shorten  the  time  for  bringing  a  petition  by  one  who  availed 
himself  of  the  privilege  of  asking  for  an  apportionment.  An 
owner  of  land  subjected  to  an  invalid  assessment  which  has  been 
apportioned  does  not  forfeit  his  right  to  recover  back  the  later 
installments  by  having  paid  the  first  without  protest;2  and  he 
may  recover  such  an  installment  back  in  an  action  of  contract 
notwithstanding  its  having  been  added  to  his  general  tax  bill.3 

Apportionment  by  Assessors 

Section  14.  The  aldermen  of  any  city  may  direct  that  the  appor- 
tionment of  betterments  under  the  preceding  section  be  made  by  the 

Gardner  v.  Boston,  106  Mass.  549  (1871). 

2  Smith  v.  Boston,  194  Mass.  31    (1907). 

3  Dexter  v.  Boston,  176  Mass.  247   (1900). 


702  Taxation  in  Massachusetts 

[G.  L.  c.  80,  §§  14, 15 
assessors  thereof,  and  thereupon  all  powers  and  duties  with  respect  to 
the  apportionment  of  betterments  assessed  in  behalf  of  such  city  shall 
be  transferred  from  the  board  by  whom  the  assessment  was  made  to  the 
assessors. 

The  foregoing  section  was  introduced  into  the  general  bet- 
terment act  of  1918  in  order  to  permit  the  purely  ministerial 
duty  of  apportioning  betterment  assessments  to  be  transferred 
to  the  board  of  assessors. 

Subsequent  Division  of  Land  Assessed 

Section  15.  If  land  which  is  subject  to  a  lien  for  an  assessment 
made  under  this  chapter  is  subsequently  divided  by  sale,  mortgage, 
partition  or  otherwise  and  such  division  has  been  duly  recorded  in  the 
registry  of  deeds,  the  board,  before  the  land  has  been  advertised  for 
sale  for  non-payment  of  the  assessment,  may,  or  upon  the  written  re- 
quest of  the  owner  or  mortgagee  of  a  portion  thereof,  accompanied  by 
a  plan  sufficient  for  the  identification  of  the  division  o*f  the  whole 
estate,  with  the  names  of  the  different  owners  thereof,  shall,  divide  said 
assessment  or  the  amount  thereof  remaining  unpaid,  and  the  costs 
and  interest  accrued  thereon,  among  the  several  parcels  into  which 
said  land  has  been  divided,  assessing  upon  each  parcel  the  part  of 
the  original  assessment  remaining  unpaid  proportionate  to  the  special 
benefit  received  by  such  parcel  from  the  improvement.  After  such 
assessment  has  been  so  divided,  only  the  part  of  the  assessment,  in- 
terest and  costs  assessed  upon  each  parcel  shall  constitute  a  lien  upon 
such  parcel.  At  least  seven  days  prior  to  making  such  division  the 
board  shall  send  by  registered  mail  to  all  owners  of  any  interest  in 
the  land  assessed,  whose  addresses  are  known  to  them,  a  notice  of 
their  intention  to  make  such  division  and  of  the  time  appointed  there- 
for, unless  such  notice  has  been  waived.  A  person  aggrieved  by  any 
action  of  the  board  under  this  section  shall  have  the  same  remedy 
as  a  person  aggrieved  by  the  refusal  of  the  board  to  abate  an  assess- 
ment. 

The  provision  for  the  division  of  an  unpaid  betterment 
assessment  when  the  land  upon  which  it  was  assessed  was  divided 
was  taken  from  previous  statutes  relating  to  sewer  assess- 
ments, and  to  public  improvements  in  the  city  of  Boston.  Apart 
from  a  division  in  accordance  with  the  procedure  laid  down  by 
statute,  an  assessment  is  properly  made  in  one  entire  sum  on  the 


Betterments  703 

G.L.c  80,  §§15, 16] 

land  as  it  existed  when  the  lien  went  into  effect  and  is  to  be 
enforced  as  one  lien  on  the  entire  parcel,  regardless  of  any  di- 
vision of  the  parcel  by  sale  or  otherwise  before  or  after  the 
assessment.1 

Re-Assessment 

Section  16.  If  an  assessment  is  invalid  and  has  not  been  paid  in 
full  or  has  been  paid  under  such  circumstances  that  it  can  be  recovered 
back,  it  may  be  re-assessed  by  the  board  in  the  amount  for  which  the 
original  assessment  ought  to  have  been  made,  at  any  time  before  the 
expiration  of  two  years  from  the  date  of  the  assessment,  if  the  land 
has  in  the  meantime  been  alienated ;  otherwise  at  any  time  before  the 
alienation  thereof.  Such  assessment  shall  be  a  lien  upon  any  sum 
paid  on  account  of  the  original  assessment,  and  to  the  extent  that  it 
is  not  thereby  satisfied  shall  be  a  lien  upon  the  land.  It  shall  be 
collected  in  the  same  manner  as  an  original  assessment,  and  shall  in 
all  other  respects  be  subject  to  this  chapter. 

A  re-assessment  is  a  new  assessment  of  a  betterment  which 
has  been  held  or  found  to  be  invalid ;  an  order  of  the  board  which 
levied  an  assessment  reducing  it  in  amount  is  not  a  re-assess- 
ment,1 The  provisions  in  the  general  betterment  act  of  1918 
in  regard  to  re-assessment  were  taken  in  substance  from  the  high- 
way betterment  act  but  were  somewhat  amplified  and  certain  de- 
fects in  the  law  were  remedied.  In  general  the  provisions  in  re- 
gard to  the  re-assessment  of  general  taxes  are  incorporated  into 
this  section.2 

The  lien  for  a  re-assessment  under  the  foregoing  section  at- 
taches when  the  original  order  is  recorded  and  is  not  lost  by 
reason  of  the  invalidity  of  an  assessment  thereunder,  so  that  it 
remains  an  incumbrance  on  the  land,3  unless  the  invalidity 
of  the  assessment  was  due  to  such  illegality  in  the  establish- 
ment or  construction  of  the  public  improvement  for  which  the 
assessment  was  levied  that  no  valid  assessment  could  have  been 
made.     In  such  case,  if  by  subsequent  curative  act  an  assess- 

1  Hester  v.  Collector  of  Brockton,  217  Mass.  422  (1914).  See  as  to  provi- 
sions for  division  of  lien  for  general  taxes  G.  L.  c.  59,  §§79-81,  inc.,  supra,  page  309. 

i  Blake  v.  Baker,  115  Mass.  188  (1874). 

2  See  G.  L.  c.  59,  §§77,  78,  supra,  page  306. 

s  Colburn  v.  Litchfield,  132  Mass.  449   (1882);   Smith  v.  Abington  Saving8 
Bank,  171  Mass.  178  (1898);  Maloy  v.  Holl,  190  Mass.  277  (1906). 


704  Taxation  in  Massachusetts 

[G.  L.  c.  80,  §§  16, 17 

ment  is  authorized  and  is  levied,  there  is  no  encumbrance  on 

the  land  until  the  curative  act  is  enacted.4 

Provisions  of  Chapter  Eighty  Exclusive 

Section  17.  Whenever  a  formal  vote  or  order  for  the  laying  out 
or  construction  of  a  public  improvement,  or  for  the  taking  of  land 
therefor,  states  that  betterments  are  to  be  assessed,  no  betterments 
shall  be  assessed  except  under  this  chapter,  and  all  proceedings  relat- 
ing to  such  betterments  shall  be  as  herein  provided,  notwithstanding 
any  special  act  hitherto  enacted. 

This  section  was  intended  to  make  it  clear  that  the  provisions 
of  the  general  betterment  act  of  1918  now  incorporated  in  chap- 
ter eighty  of  the  General  Laws  supersede  all  other  general  and 
special  acts  and  provisions  in  city  charters,  upon  the  same  sub- 
ject. It  is  to  be  noted  however  that  the  provisions  of  chapter 
eighty  do  not  apply  except  in  the  case  of  a  formal  vote  or  order 
for  the  laying  out  or  construction  of  a  public  improvement 
stating  that  betterments  are  to  be  assessed,  and  with  respect 
to  betterments  or  special  assessments  imposed  in  any  other 
way,  the  provisions  of  chapter  eighty  are  not  applicable  unless 
specifically  incorporated  by  reference. 


*Maloy  v.  Holl,  190  Mass.  277   (1906)  ;  Campbell  v.  Haven,  211  Mass.  121 
(1912)  ;  Sullivan  v.  Mandell,  212  Mass.  174  (1912). 


CHAPTER    82 

THE  LAYING  OUT  AND  RELOCATION   OF  PUBLIC 

WAYS 

Assessment  of  Cost  of  Relocation 

Section  11.  If  application  is  made  to  the  commissioners  by  a 
town,  or  by  five  inhabitants  thereof,  to  relocate  or  order  specific  re- 
pairs on  a  way  within  such  town,  whether  it  was  laid  out  by  authority 
of  the  town  or  otherwise,  they  may,  either  for  the  purpose  of  estab- 
lishing the  boundary  lines  of  such  way  or  of  making  alterations  in  the 
course  or  width  thereof,  or  of  making  specific  repairs  thereon,  relocate 
it  in  the  manner  prescribed  for  laying  out  highways  in  sections  two 
to  nine,  inclusive.  The  expense  shall  be  assessed  upon  the  petitioners 
or  upon  the  county  or  town,  or  upon  the  land  benefited  by  the  im- 
provement under  chapter  eighty,  as  the  commissioners  may  order. 
The  commissioners  may,  without  petition,  after  giving  notice  as  pro- 
vided in  section  three,  relocate  any  public  way  for  the  purpose  of 
establishing  its  boundaries,  or  of  making  specific  repairs  thereon,  in 
which  case  no  part  of  the  expense  shall  be  assessed  upon  the  town. 

In  spite  of  rather  broad  language  in  the  statute  giving  power 
to  county  commissioners  to  act  under  the  highway  betterment 
act,  it  was  intimated  by  the  court  that  county  commissioners 
could  not  relocate  a  highway  under  the  betterment  act,  at  least 
in  towns  which  had  not  accepted  the  act;1  but  under  the  pres- 
ent statute,  which  was  modified  to  conform  to  the  general  bet- 
terment act  of  1918,  it  is  clear  that  county  commissioners  may 
assess  betterments  for  the  relocation  of  a  highway  in  any  part 
of  the  state. 

The  county  commissioners  have  long  had  the  power  to  as- 
sess all  or  part  of  the  expense  of  a  relocation  upon  the  persons 
who  petitioned  for  the  relocation,2  and  while  such  an  assess- 

'  Watertown  v.  Middlesex  County  Commissioners,  176  Mass.  22,  28,  32 
(1900)  ;  Bennett  v.  Wellesley,  189  Mass.  308,  317  (dissenting  opinion  of  Knowl- 
ton,  C.  J.)    (1905). 

"By  St.  1835,  c.  152,  §8,  the  county  commissioners  could  locate  anew  a 
road  only  upon  the  application  of  the  town,  and  the  town  was  required  to  pay 

705 


706  Taxation  in  Massachusetts 

[G.L.  c.82,§§11,  12 

ment  would  not  in  most  instances  be  levied  in  accordance 
with  the  limitations  imposed  by  the  constitution  in  respect  to 
betterment  assessments,  the  persons  who  petitioned  for  a  re- 
location while  such  a  statute  was  in  force  would  not  be  in  a  posi- 
tion to  contend  that  a  burden  thus  voluntarily  incurred  by 
them  was  not  constitutional. 

As  an  alternative,  the  county  commissioners  may  determine 
that  the  county  shall  pay  the  expense  of  a  relocation,  or  they 
may  impose  it  upon  the  cities  or  towns,  or  assess  it  directly  upon 
the  land  benefited,  in  accordance  with  the  provisions  of  the 
chapter  on  betterments.  If  the  cost  is  imposed  upon  a  city  or 
town,  the  city  or  town  cannot  assess  the  sum  it  is  thus  obliged 
to  pay  upon  the  land  benefited,  but  must  raise  it  out  of  the 
general  tax  levy,  as  it  was  evidently  the  intention  of  the  legis- 
lature that  the  order  of  the  county  commissioners  should  con- 
stitute a  final  determination  of  the  whole  subject  of  the  payment 
of  the  expenses.3 

Assessment  of  Cost  of  Laying  Out,  Alteration,  Repair  or 

Discontinuance 
Section  12.  When  a  highway  has  been  finally  laid  out,  altered, 
relocated  or  discontinued,  or  when  specific  repairs  are  ordered  on  an 
existing  highway  by  the  county  commissioners,*  the  county  shall  be 
primarily  liable  for  all  damages  thereby  caused,  or  for  all  amounts 
awarded  or  assessed  as  indemnity.  The  commissioners  shall  deter- 
mine what  proportion  if  any  of  the  expenses  of  the  proceedings,  cost 
of  construction,  damages  and  indemnity  shall  be  assessed  upon  the 
land  benefited  under  chapter  eighty  and  whether  the  remainder,  if 
any,  shall  be  borne  by  the  county,  or  by  the  towns  in  which  the  parts 
of  the  highway  are  respectively  located.  The  commissioners  shall 
notify  each  such  town  of  any  balance  due  from  such  town  to  the 
county  under  this  section  and  may  enforce  payment  as  provided  in 
section  fifteen. 


all  the  expenses.  So  in  R.  S.,  c.  24,  §9.  By  St.  1851,  c.  214,  the  commissioners 
were  authorized  to  locate  anew  a  road  within  any  town  upon  the  application  of 
any  five  inhabitants  of  the  town,  in  which  case  the  persons  making  the  applica- 
tion were  required  to  pay  all  the  expenses.  By  G.  L.  c.  43,  §12,  it  was  pro- 
vided that  the  expense  should  be  assessed  upon  the  petitioners  for  the  relocation 
or  upon  the  town  or  county  as  the  commissioners  might  order,  and  by  St.  1873,  c. 
165,  the  further  amendment  was  made  by  which  the  commissioners  might  assess 
the  expenses  in  whole  or  in  part  upon  the  abutters. 

3  Tufts  v.  Mayor  and  Aldermen  of  Somerville,  122  Mass.  273  (1877). 


The  Laying  Out  and  Relocation  op  Public  Wats  707 

G.  L.  c.  82,  §§  12,  24,  26] 

It  was  held  in  1871  that  under  the  provisions  of  statute  as 
they  then  existed  county  commissioners  had  no  authority  to 
institute  proceedings  under  the  betterment  acts  in  any  city  to 
be  conducted  under  those  acts  either  by  themselves  or  by  the 
city  council  or  other  board  of  a  city  in  compliance  with  their 
order;1  but  in  1887  they  were  given  such  power  over  highways 
within  a  city,  or  within  a  town  which  had  accepted  the  better- 
ment act.  The  statute  seemed  to  contemplate  that  the  actual 
assessment  of  the  betterments  would  be  made  by  the  local 
authorities.  The  general  betterment  act  of  1918  however  gave 
the  county  commissioners  power  to  assess  betterments  them- 
selves directly,  and  in  any  part  of  the  state.2 

The  repairs  for  which  betterments  may  be  levied  are  "spe- 
cific repairs"  such  as  changing  the  grade,  or  resurfacing,  and 
there  is  no  authority  for  levying  betterments  for  "ordinary 
repairs,"  made  by  the  administrative  officers  in  charge  of  the 
repair  of  highways  without  a  formal  vote  or  order  of  a  board 
of  officers  of  a  county,  city  or  town.3 

Assessment  of  the  Cost  of  Private  Ways 

Section  24.  ...  If  a  private  way  is  laid  out,  relocated,  altered  or 
discontinued  by  a  town,  or  if  a  town  makes  specific  repairs  thereon, 
or  if  a  town  way  is  discontinued,  the  persons  upon  whose  application 
such  way  is  laid  out,  relocated,  altered  or  discontinued  or  upon  whose 
application  specific  repairs  are  made  thereon  shall,  before  such  way 
is  entered  upon  for  the  purposes  of  construction,  or  is  closed  up,  give 
such  town  security  satisfactory  to  the  selectmen  that  they  will  in- 
demnify such  town  for  all  damages  and  charges  which  it  is  obliged  to 
pay  by  reason  thereof,  and  all  such  damages  and  charges  shall  be 
repaid  to  the  town  by  the  persons  making  such  application ;  provided, 
however,  that  in  case  of  the  discontinuance  of  a  town  way  the  select- 
men may  order  a  part  of  the  damages  to  be  paid  by  the  town.  .  .  . 

Section  26.  .  .  .  If  it  is  a  private  way,  the  damages  and  costs,  or 
such  part  thereof  as  the  county  commissioners  consider  reasonable, 
shall  be  repaid  to  the  town  by  the  persons  for  whose  use  it  was  laid 
out,  relocated  or  altered,  and  security  for  such  payment,  satisfactory 
to  the  county  commissioners,  shall  be  given  to  the  town  by  such 

'Chase  v-  Worcester,  108  Mass.  60  (187i). 

2  G.  L.  c.  80,  §1,  supra,  page  669. 

3 Hitchcock  v.  Aldermen  of  Springfield,  121  Mass.  382  (1876). 


708  Taxation  in  Massachusetts 

[G.  L.  c.  82,  §  26 

persons  before  the  way  is  entered  upon  for  the  purpose  of  construct- 
ing or  altering  the  same. 

The  private  ways  referred  to  in  these  statutes  are  really  pub- 
lic ways  laid  out  and  constructed  by  public  authority  and  which 
the  public  may  lawfully  use  to  the  same  extent  as  public  high- 
ways and  are  private  only  in  that  the  land  damages  are  paid  by 
the  persons  benefited  by  the  laying  out.1  An  assessment  could 
not  constitutionally  be  levied  for  the  construction  of  a  purely 
private  way.2  It  is  to  be  noted  that  the  land  damages  are  to 
be  paid  by  the  persons  for  whose  use  or  benefit  the  way  is  laid 
out  and  without  limitation  to  actual  benefit.  These  statutes 
have  stood  in  much  the  present  form  since  long  before  the  con- 
stitution was  adopted  and  would  probably  not  now  be  held 
unconstitutional.  The  statutes  may  well  be  construed  as  author- 
izing the  assessment  only  upon  those  who  petition  for  the  way 
and  thus  waive  any  right  to  object  to  the  constitutionality  of 
the  statutes. 


1Denham  v.  Bristol  County  Commissioners,  108  Mass.  202  (1871] 
2  Morse  v.  Stocker,  1  Allen  150  (1861). 


CHAPTER    83 
SEWERS,    DRAINS    AND    SIDEWALKS 

Sewer  Assessments  . 

Section  14.  A  person  who  enters  his  particular  drain  into  a 
main  drain  or  common  sewer,  or  who  by  more  remote  means  receives 
benefit  thereby  for  draining  his  land  or  buildings,  shall  pay  to  the 
town  a  proportional  part  of  the  charge  of  making  and  repairing  the 
same,  and  of  the  charge,  not  already  assessed,  of  making  and  repair- 
ing other  main  drains  and  common  sewers  through  which  the  same 
discharges,  which  shall  be  ascertained,  assessed  and  certified  by  the 
aldermen,  sewer  commissioners,  selectmen  or  road  commissioners. 

This  section  has  stood  since  its  original  enactment  in  1841 
without  material  change  except  for  the  insertion  in  1878  of 
the  clause  including  the  cost  of  other  sewers  through  which 
the  sewer  for  which  the  assessment  is  levied  discharges. 

The  constitutional  principles  already  set  forth1  apply  to 
assessments  under  this  statute  and  an  assessment  in  excess 
of  the  actual  benefit  cannot  be  sustained;  but  in  the  absence  of 
evidence  that  actual  injustice  is  done  there  is  no  objection  to 
apportioning  the  assessment  according  to  some  more  or  less 
arbitrary  rule.2  The  assessment,  if  made  in  proportion  to  value, 
should  be  made  according  to  the  value  of  the  land  exclusive 
of  buildings,3  and  should  not  depend  upon  the  immediate  neces- 
sities for  drainage  but  according  to  the  opportunity  for  drainage 
when  the  owner  may  require  it.4 

If  a  sewer  built  to  drain  a  certain  district  carries  off  the 
drainage  of  districts  situated  above,  it  would  be  reasonable  that 

1  Supra,  Part  I,  §§65-70,  inc. 

2  Weed  v.  Boston,  172  Mass.  28  (1898);  Dexter  v.  Boston,  176  Mass.  247 
(1900)  ;  Hall  v.  Street  Commissioners  of  Boston,  177  Mass.  434  (1901)  ;  Smith 
v.  Mayor  and  Aldermen  of  Worcester,  182  Mass.  232  (1902)  ;  Cheney  v.  Beverly, 
188  Mass.  81  (1905)  ;  O'Connell  v.  First  Parish  in  Maiden,  204  Mass.  118  (1910). 

3  Boston  v.  Shaw,  1  Met.  130  (1840)  ;  Wright  v.  Boston,  9  Cush.  223  (1852)  ; 
Springfield  v.  Gay,  12  Allen  612  (1866);  Brewer  v.  Springfield,  97  Mass.  152 
(1867). 

*  Downer  v.  Boston,  7  Cush.  277  (1851)  ;  Springfield  v.  Gay,  12  Allen  612 
(1866)  ;  Snow  v.  Fitchburg,  136  Mass.  183  (1883). 

709 


710  Taxation  in  Massachusetts 

[G.  L.  c.  83,  §  14 

some  portion  of  the  cost  of  the  sewer  should  be  apportioned 
to  the  upper  drains  which  depend  upon  it  for  discharge,5  al- 
though such  apportionment  is  not  essential  to  the  validity  of 
the  assessment,0  but  part  of  the  cost  of  an  existing  sewer  can- 
not be  arbitrarily  included  in  the  assessment  for  the  construc- 
tion of  a  new  sewer  tributary  to  it.7  The  board  laying  the  as- 
sessment may  lawfully  divide  the  assessment  into  three  classes 
designated  as  direct  benefit,  remote  benefit,  and  more  remote 
benefit,  respectively.8  In  fixing  the  assessable  cost,  all  revenue 
derived  from  the  sewer  should  be  deducted.9 

It  is  the  duty  of  the  proper  officials  to  levy  the  assessment 
within  a  reasonable  time  after  the  completion  of  the  sewer,10 
but  there  is  no  requirement  in  the  statute  that  the  assessment 
be  made  within  a  certain  time  limit  and  the  court  will  impose 
none.11  The  provision  in  the  general  laws  that  sewer  assessments 
in  cities  shall  be  laid  by  the  board  of  aldermen  supersedes  incon- 
sistent provisions  in  the  several  city  charters  previously 
granted.12  When  the  same  structure  is  used  for  a  sewer  and  also 
for  another  purpose  an  assessment  of  the  cost  of  what  it  would 
have  cost  if  built  solely  as  a  sewer  is  proper.13 

It  is  not  necessary  to  give  the  owners  of  estates  to  be  assessed 
notice  of  intention  to  levy  a  sewer  assessment,14  but  notice  must 
be  given  after  the  assessment  is  levied.    A  notice  in  writing  of 

"Pattern  v.  Springfield,  99  Mass.  627   (1868). 

6  Fairbanks  v.  Mayor  and  Aldermen  of  Fitchburg,  132  Mass.  42  (1882)  ;  Ayer 
v.  Mayor  and  Aldermen  of  Somerville,  143  Mass.  585   (1887). 

7  Brown  v.  Mayor  and  Aldermen  of  Fitchburg,  128  Mass.  282  ( 1880) .  The  cost 
of  the  use  of  an  excavator  belonging  to  another  city  department,  and  a  propor- 
tionate part  of  the  overhead  expenses  of  the  sewer  department  may  be  included 
in  the  assessable  cost  of  a  sewer.    Parsons  v.  Worcester,  234  Mass.  108   (1919). 

8  Collins  v.  Mayor  and  Aldermen  of  Holyoke,  146  Mass.  298  ( 1888) . 
"Patton  v.  Springfield,  99  Mass.  627   (1868). 

10  Dunn  v.  Mayor  of  Taunton,  200  Mass.  252   (1908). 

"Fairbanks  v.  Mayor  and  Aldermen  of  Fitchburg,  132  Mass.  42  (1882); 
Hester  v.  Collector  of  Brockton,  217  Mass.  422  (1914).  In  the  former  case  an 
assessment  levied  six,  and  in  the  latter  case  seventeen,  years  after  the  completion 
of  the  sewer  was  sustained. 

12  Woodbridge  v.  Mayor  and  Aldermen  of  Cambridge,  114  Mass.  483    (1874). 

13  Gray  v.  Aldermen  of  Boston,  139  Mass.  328  (1885).  If  separate  sewers 
are  laid  for  sewage  and  surface  water  respectively,  and  the  surface  water  sewer 
is  of  no  benefit  to  a  particular  parcel  of  land,  an  assessment  based  on  the  cost 
of  both  is  valid,  if  it  does  not  exceed  the  benefit  to  the  land  from  the  construc- 
tion of  the  other  sewer.   Parsons  v.  Worcester,  234  Mass.  108   (1919). 

"Allen  v.  Charlestown,  111  Mass.  123  (1872)  ;  Collins  v.  Mayor  and  Alder- 
men of  Holyoke,  146  Mass,  298  (1888)  ;  Smith  v.  Abington  Savings  Bank,  171 
Mass.  178  (1898). 


Sewers,  Drains  and  Sidewalks  711 

G.  L.  c.  83,  §  14] 

the  amount  of  the  assessment  and  a  statement  of  what  it  is  for, 
with  a  demand  for  payment,  is  sufficient.15  After  a  lawful  order 
of  assessment  has  been  passed,  a  warrant  for  its  execution  com- 
mitted to  the  collector  and  notices  given  to  the  owners  of  the 
estates  assessed,  it  is  not  within  the  power  of  the  board  levying 
the  assessment  at  a  subsequent  meeting  to  reconsider  or  rescind 
the  order  laying  the  assessment.1 


16 


Sewer  Assessments  in  the  City  of  Boston 

As  already  stated,  sewer  assessments  were  first  established  in 
the  city  of  Boston  by  a  city  ordinance  and  without  special  au- 
thority of  statute,  and  although  the  method  adopted  by  the 
ordinance  was  held  unreasonable  and  the  ordinance  consequently 
invalid  it  was  not  intimated  that  it  was  beyond  the  power  of 
the  city  to  build  sewers  and  levy  assessments  therefor.1  In 
1841  however  general  provision  was  made  by  statute  for  public 
sewers  and  sewer  assessments2  and  there  was  no  special  legisla- 
tion regarding  sewer  assessments  in  the  city  of  Boston  until 
1892.  It  was  provided  in  a  statute  enacted  in  that  year  that 
the  whole  cost  of  every  sewer  thereafter  constructed  in  the  city 
whether  in  a  street  or  in  a  strip  of  private  land  should  be  assessed 
upon  the  abutting  land  in  proportion  to  frontage  upon  the 
sewer,  to  an  amount  not  exceeding  four  dollars  for  each  lineal 
foot  of  sewer.3  This  statute  was  held  unconstitutional  in  1898 
in  that  it  applied  to  all  parts  of  the  city  whether  cut  up  into 
house  lots  or  not  and  to  sewers  in  strips  of  private  land  taken 
for  the  purpose  as  well  as  in  highways,  so  that  it  might  be 
expected  to  work  gross  injustice  in  many  cases,  and  that  it 
excluded  all  inquiry  as  to  actual  benefits  either  in  the  original 
assessment  or  upon  appeal.4 

In  1897  provision  was  made  for  assessing  the  cost  of  main- 
tenance of  sewers  upon  real  estate  in  the  city,5  and  this  statute 

"Collins  v.  Mayor  and  Aldermen  of  Holyoke,  146  Mass.  298  (1888)  j  Law- 
rence v.  Webster,  167  Mass.  513  (1897). 

18  Woodbridge  v.  Mayor  and  Aldermen  of  Cambridge,  114  Mass.  483  (1874). 
And  see  also  Farnsworth  v.  Boston,  121  Mass.  173  (1876)  ;  Barnstable  Savings 
Bank  v.  Boston,  127  Mass.  254  (1879). 

1  Boston  v.  Shaw,  1  Met.  130  (1840). 

2  Supra,  page  709. 
8  St.  1892,  c.  402. 

*Weed  v.  Boston,  172  Mass.  28   (1898).    And  see  also  Dexter  v.  Boston,  176 
Mass.  247   (1900)  ;  White  v.  Gove,  183  Mass.  333   (1903). 
8  St.  1897,  c.  426,  §7. 


712  Taxation  in  Massachusetts 

[G.  L.  c.  83,  §  14 

also  was  held  unconstitutional  in  May,  1899,  because  it  author- 
ized an  assessment  for  a  purpose  improper  for  special  assess- 
ments and  because  it  made  no  provision  for  a  hearing.6  Shortly 
afterward  the  provision  for  sewer  assessments  was  enacted  in  its 
present  form  and  this  statute  has  been  sustained  as  constitu- 
tional. It  provides  that  the  assessments  shall  be  proportional, 
and  this  is  construed  as  meaning  proportional  to  benefits,  and, 
it  is  to  be  assumed,  not  in  excess  of  benefits  actually  received.7 

The  statute  further  provides  that  the  assessment  must  be 
levied  within  two  years  after  the  completion  of  the  work;  that 
it  shall  not  exceed  four  dollars  per  linear  foot ;  and  that  it  shall 
constitute  a  lien  for  two  years  after  the  assessment.  Provision 
is  also  made  for  the  revision  and  correction  of  an  assessment  by 
the  board  which  levied  it,  and  for  appeal  to  the  superior  court  in 
the  manner  provided  for  appeals  from  the  board  of  assessors  in 
the  case  of  the  general  property  tax.8  By  other  statutes  still 
in  force  provision  is  made  for  the  abatement  and  suspension  of 
assessments  when  the  board  deems  it  just  and  proper,9  for  the 
suspension  of  assessments  upon  exempt  lands  as  long  as  they 
remain  exempt,10  for  the  relieving  of  portion  of  a  parcel  of  land 
from  an  assessment  when  part  of  the  assessment  is  paid11  and  for 
the  recording  of  notice  by  the  superintendent  of  streets  before 
he  starts  the  construction  of  a  sewer.12  Special  assessments  are 
not  permitted  in  the  case  of  sewers  designed  for  the  disposal  of 
surface  drainage  solely.13 

In  the  absence  of  a  general  legislative  revision  and  consolida- 
tion of  the  innumerable  special  acts  governing  the  construction 
of  public  ways  and  sewers  in  the  city  of  Boston,  and  relating 
to  the  authority  of  the  officers  charged  with  the  supervision  of 
the  various  municipal  departments,  there  are  seemingly  incon- 
sistent or  contradictory  provisions  which  make  it  very  difficult 
to  construe  them  so  as  to  formulate  a  clear  and  comprehensive 
system  of  municipal  administration.  The  original  board  of 
survey  act  of  1891  provided  for  the  inclusion  of  the  cost  of 

8  Sears  v.  Street  Commissioners  of  Boston,  173  Mass.  350  (1899). 

7  Hall  v.  Street  Commissioners  of  Boston,  177  Mass.  434,  440   (1901). 

8  St.  1899,  c.  450,  §3,  as  amended  by  St.  1912,  c.  371. 

9  St.  1896,  c   359. 

10  St.  1892,  c.  402,  §4. 

11  St.  1895,  c.  297. 
"St.  1903,  c.  268,  §1. 

13  St.  1902,  c.  526.   See,  however,  as  to  brook  courses,  Sp.  Acts  1915,  c    108. 


Sewers,  Drains  and  Sidewalks  713 

G  L.  c.  83,  §  14] 

building  a  sewer  in  the  assessable  cost  of  the  street,  and  there 
is  nothing  inconsistent  with  these  provisions  in  the  general  bet- 
terment law.  A  similar  provision  in  a  statute  applicable  to  a 
particular  improvement  in  the  city  of  Boston  was  held  con- 
stitutional and  the  joining  of  these  two  items  is  thus  in  itself 
unobjectionable.14  In  some  instances  when  for  some  reason  it 
was  not  desired  to  assess  betterments  for  the  laying  out  and  con- 
struction of  the  street,  assessments  for  the  cost  of  the  sewer 
alone  were  laid  under  the  board  of  survey  act  and  acts  in  amend- 
ment thereof,15  and  while  the  act  was  unconstitutional  and  the 
assessments  void  because  they  were  not  limited  to  the  actual 
benefit16  there  seemed  to  be  no  objection  to  an  assessment  under 
this  statute  merely  because  it  was  for  the  sewer  only.  In  the 
sewer  maintenance  assessment  act  of  1897  there  was  a  provision 
that  no  sewer  should  thereafter  be  constructed  except  under 
authority  of  that  act;17  but  the  assessment  feature  of  that  act, 
which  was  held  unconstitutional18  was  so  inseparable  from  the 
rest  of  the  statute  that  the  whole  statute  was  invalid;19  and  a 
sewer  might  be  constructed  as  part  of  a  street  under  the  street 
betterment  act  while  the  sewer  act  remained  unrepealed.20  The 
provision  that  no  sewer  should  be  constructed  except  under  the 
provisions  of  the  sewer  assessment  act  however  was  re-enacted  in 
the  unobjectionable  sewer  assessment  act  of  1899  and  is  still 
in  force,21  although  a  later  street  betterment  act,  which  was 
superseded  by  the  general  betterment  law  of  1918,  provided  for 
assessments  for  the  cost  of  laying  out  or  constructing  a  highway 
"with  or  without  a  sewer."22 

Under  the  original  statute  of  1841  and  all  other  statutes  re- 
lating to  the  laying  out  of  sewers  down  to  1897,  including  the 
unconstitutional  statute  of  1892,  the  order  of  laying  out  and 

"Lincoln  v.  Street  Commissioners  of  Boston,  176  Mass.  210  (1900). 
"Parke  v.  Boston,  175  Mass.  4G4    (1900)  ;  Harwood  v.  Donovan,  188  Mass. 
487   (1905)  ;  Tappan  v.  Street  Commissioners  of  Boston,  193  Mass.  498   (1907). 
18  Smith  v.  Boston,  194  Mass.  31  ( 1907) . 

17  St.  1897,  c.  426,  §1. 

18  Sears  v.  Street  Commissioners  of  Boston,  173  Mass.  350  (1899). 
"Tappan  v.  Street  Commissioners  of  Boston,  193  Mass.  498  (1907). 

20  Tappan  v.  Street  Commissioners  of  Boston,  193  Mass.  498  (1907).  The 
distinction  is  of  practical  importance;  if  an  assessment  tor  a  sewer  is  under  the 
betterment  act  it  cannot  be  levied  until  the  street  is  completed. 

21  St.  1899,  c.  450,  §1 ;  St.  1903,  c.  268,  §1. 

"St.  1906,  c.  393,  §2;  St.  1913,  c.  536.  See  Sullivan  v.  Mandell,  212  Mass. 
174, 177   (1912). 


714  Taxation  in  Massachusetts 

[G.  L.  c.  83,  §§  14, 15 

the  assessment  were  made  by  the  mayor  and  aldermen,  or, 
after  1882,  by  the  board  of  aldermen  alone.  In  1897  these  pow- 
ers were  given  to  the  street  commissioners,  and  since  that  date 
no  sewer  can  be  laid  out  even  in  an  existing  street  except  by  order 
of  the  board  of  street  commissioners  with  the  approval  of  the 
mayor;  and  an  assessment  by  the  street  commissioners  for  the 
cost  of  a  sewer  constructed  on  the  order  of  the  mayor  alone  is 
not  valid.23 

Assessment  for  Sewerage  System  at  Uniform  Rate 

Section  15.  The  city  council  of  a  city  or  a  town  may  adopt  a 
system  of  sewerage  for  a  part  or  the  whole  of  its  territory,  and  may 
provide  that  assessments  under  section  fourteen  shall  be  made  upon 
owners  of  land  within  such  territory  by  a  fixed  uniform  rate,  based 
upon  the  estimated  average  cost  of  all  the  sewers  therein,  according 
to  the  frontage  of  such  land  on  any  way  in  which  a  sewer  is  con- 
structed, or  according  to  the  area  of  such  land  within  a  fixed  depth 
from  such  way,  or  according  to  both  such  frontage  and  area;  but  no 
assessment  in  respect  to  any  such  land,  which  by  reason  of  its  grade  or 
level  or  any  other  cause  cannot  be  drained  into  such  sewer,  shall  be 
made  until  such  incapacity  is  removed.  If  the  assessment  is  accord- 
ing to  the  area  within  such  fixed  depth,  the  lien  therefor  shall  attach 
to  the  parcel  assessed. 

A  special  statute  similar  to  the  above  was  held  unquestion- 
ably constitutional  before  the  general  provision  was  enacted1 
and  the  latter  was  enforced  for  several  years  without  any  ques- 
tion of  its  constitutionality,  but"  the  later  decisions  threw  grave 
doubt  upon  its  validity.2    It  was  held  however  that  the  statute 

"Sullivan  v.  Mandell,  212  Mass.  174  (1912). 

'Butler  v.  Worcester,  112  Mass.  541  (1873).  The  general  statute  was  first 
enacted  in  1878. 

8  See  the  following  extract  from  the  report  of  the  commissioners  who  pre- 
pared the  Revised  Laws  in  reference  to  this  section. 

"This  section  has  been  retained  notwithstanding  the  decisions  in  Weed  v. 
Boston,  172  Mass  28,  and  Dexter  v.  Boston,  176  Mass.  247.  In  the  first  of  these 
cases,  the  section  was  referred  to  with  the  implication  that  on  account  of  its 
limitations  it  may  not  be  unconstitutional,  and  in  the  second  no  reference  is  made 
to  it.  The  principles  laid  down  in  the  opinion  in  Sears  v.  Boston,  173  Mass.  75, 
would  clearly  sustain  it  as  applied  to  a  certain  class  of  cases  in  which  the  result 
of  the  method  prescribed  coincides  with  the  result  of  an  assessment  'according  to 
the  benefits  received.'  See  also  Carson  v.  Brockton,  175  Mass.  242,  and  Hall  v. 
Boston,  January  4,  1901  [177  Mass.  434].  It  would  be  possible  so  to  redraft  the 
section  as  to  bring  it  clearly  within  the  rule  enunciated  in  these  cases;  but  as 


Sewers,  Drains  and  Sidewalks  715 

G.  L.  c.  83,  §  15] 

should  be  construed  as  authorizing  only  assessments  proportional 
to  and  not  in  excess  of  the  actual  benefit  and  that  thus  construed 
it  was  constitutional.3  If,  in  any  particular  instance,  the  assess- 
ment is  greater  than  the  increase  in  the  fair  market  value  of 
the  land  resulting  from  the  establishment  of  the  sewer,  the  owner 
of  the  land  will  be  entitled  to  an  abatement.4 

The  assessments  under  this  statute  are  not  limited  to  per- 
sons who  enter  their  drains  into  the  sewer  or  who  by  more 
remote  means  receive  benefit  thereby,  but  are  made  upon  owners 
of  estates  within  the  sewerage  territory  according  to  fixed  uni- 
form rates;5  excepting  such  lands  as  will  never  use  the  sewer, 
either  from  natural  causes  or  by  reason  of  their  perpetual  de- 
votion by  authority  of  statute  to  a  use  for  which  drainage  is 
unnecessary.6 

An  assessment  may  be  levied  under  this  statute  upon  lands 
abutting  upon  a  street  in  which  a  sewer  has  been  constructed 
after  the  statute  was  enacted  but  before  the  town  in  which  the 
sewer  lies  has  accepted  the  statute,  for  the  liability  to  an  as- 
sessment is  an  encumbrance  upon  the  abutting  estates  when  the 
sewer  is  laid  out,  although  its  amount  cannot  then  be  ascertained. 
It  is  a  liability  to  an  assessment  in  any  manner  which  may  be 
lawfully  adopted.7  An  assessment  under  an  ordinance  providing 
that  assessments  shall  be  by  uniform  rates  based  on  the  cost 
of  all  sewers  according  to  frontage  on  any  street  in  which  there  is 
a  public  sewer  and  to  area  within  a  fixed  depth  from  such  street 
and  fixing  such  rates  is  levied  under  this  section  and  leaves  no 
question  as  to  the  amount  of  land  covered  by  the  assessment.8 

An  assessment  can  be  levied  under  this  section  for  a  sewer 
constructed  by  private  parties  in  a  private  way  and  acquired  by 
the  town  when  the  way  was  laid  out  as  a  public  way,  for  the 


such  redraft  might  involve  questions  of  expediency  as  well  as  of  constitutional 
limitation,  it  is  not  considered  to  be  within  the  province  of  the  commission." 

3  Cheney  v.  Beverly,  188  Mass.  81  (1905)  ;  Hester  v.  Collector  of  Brockton, 
217  Mass.  422  (1914).  And  see  also  O'Connell  v.  First  Parish  in  Maiden,  204 
Mass.  118  (1910).  The  provision  for  application  for  abatement  now  contained  in 
section  5  of  chapter  80  applies  to  an  assessment  under  section  16.  Taylor  v. 
Mayor  and  Aldermen  of  Haverhill,  192  Mass.  287  (1906)  ;  Driscoll  v.  Northbridge, 
210  Mass.  151   (1911). 

4  Driscoll  v.  Northbridge,  210  Mass.  151    (1911). 
6  Leominster  v.  Conant,  139  Mass.  384   (1885). 

6  Mount  Auburn  Cemetery  v.  Cambridge,  150  Mass.  12   (1889). 

7  Leominster  v.  Conant,  139  Mass.  384   (1885). 

8  Taylor  v.  Mayor  and  Aldermen  of  Haverhill,  192  Mass.  287   (1906). 


716  Taxation  in  Massachusetts 

[G.  L.c.  83,  §§15, 16 

assessment  is  not  affected  in  any  way  by  the  cost  of  the  sewer 
in  the  street  upon  which  the  land  abuts.9 

It  is  not  necessary  that  notice  of  a  sewer  assessment  under 
this  section  be  given  before  it  was  levied,  if  notice  was  given 
after  it  was  levied.10 

The  imposition  of  sewer  assessments  at  a  fixed  uniform  rate 
under  the  foregoing  section  proved  satisfactory  until  by  reason 
of  the  increase  in  cost  of  labor  and  materials  during  the  war 
with  Germany  the  previously  established  rates  failed  to  produce 
the  proportion  of  the  cost  of  sewers  which  it  was  desired  to 
assess  upon  the  abutting  property  and  the  additional  burden  was 
thrown  upon  the  general  taxpayers.  As  the  statute  contains  no 
provision  for  the  modification  of  the  rate  after  it  has  once 
been  established,  in  some  instances  it  became  necessary  for 
cities  and  towns  to  secure  special  authority  from  the  legislature 
for  the  modification  of  their  rates. 

Annual  Charges  for  the  Use  of  Sewers 

Section  16.  The  aldermen  of  any  city  except  Boston  or  the 
sewer  commissioners,  selectmen  or  road  commissioners  of  a  town,  may 
from  time  to  time  establish  just  and  equitable  annual  charges  for  the 
use  of  common  sewers,  which  shall  be  paid  by  every  person  who  enters 
his  particular  sewer  therein.  The  money  so  received  may  be  applied 
to  the  payment  of  the  cost  of  maintenance  and  repairs  of  such  sewers 
or  of  any  debt  contracted  for  sewer  purposes. 

The  statute  authorizing  the  establishment  of  annual  charges 
for  the  use  of  sewers  when  first  enacted  in  1892  provided  that 
the  charges  should  be  established  by  the  city  council  of  a  city 
or  by  a  town,  but  when  the  Revised  Laws  were  prepared  in  1902 
the  statute  was  changed  with  respect  to  the  officers  who  might 
establish  the  charges  so  as  to  be  more  in  harmony  with  the  other 
provisions  of  law  relative  to  the  control  of  sewers. 

It  was  held  that  an  assessment  under  this  statute  based 
principally  upon  the  water  used  upon  the  estate  could  be  con- 
stitutionally levied  even  upon  an  estate  which  had  been  assessed 
for  the  construction  of  the  sewer.  An  assessment  for  the  con- 
struction of  the  sewer  does  not  forever  bind  the  city  to  main- 

•Slocum  v.  Brookline,  163  Mass.  23  (1895). 

10  Smith  v.  Abington  Savings  Bank,  171  Mass.  178  (1898). 


Sewers,  Drains  and  Sidewalks  717 

G.  L.  c.  83,  §§  16-18] 

tain  the  sewer  free  of  charge,  and  the  maintenance  of  the 
sewer  is  a  special  benefit.  The  assessment  is  limited  to  those  who 
actually  use  the  sewer  and  to  be  "equitable"  within  the  meaning 
of  the  statute  must  be  proportional  to  the  benefit  and  not  in 
excess  of  it.  The  owner  assessed  has  no  right  to  a  jury  trial 
and  when  a  uniform  and  self-adjusting  rate  is  adopted  under 
which  no  question  as  to  proportion  can  arise  or  any  other  ques- 
tion except  the  general  one  whether  the  rate  is  high,  the  local 
authorities  may  be  authorized  to  determine  that  question.1 

Payment  for  Permanent  Privilege  of  Using  Sewers 

Section  17.  The  aldermen  of  any  city  except  Boston  or  a  town 
in  which  main  drains  or  common  sewers  are  laid  may  determine  that 
a  person  who  uses  such  main  drains  or  common  sewers  in  any  manner, 
instead  of  paying  an  assessment  under  section  fourteen,  shall  pay  for 
the  permanent  privilege  of  his  estate  such  reasonable  amount  as  the 
aldermen  or  the  sewer  commissioners,  selectmen  or  road  commissioners 
shall  determine. 

When  an  ordinance  provides  that  sewer  assessments  shall 
be  by  fixed  uniform  rates  based  upon  the  cost  of  all  sewers 
therein  according  to  frontage  and  area  within  a  fixed  depth,  it 
sufficiently  appears  that  the  ordinance  is  enacted  under  sec- 
tion fifteen  and  not  under  section  seventeen.1 

A  person  aggrieved  by  the  determination  of  the  amount  to 
be  paid  under  this  section  is  entitled  to  apply  for  an  abatement. 
The  statute  formerly  expressly  so  provided,  and  the  provision 
was  omitted  merely  because  the  general  provisions  of  section 
twenty-eight  established  the  remedy  for  abatement  in  the  case 
of  all  forms  of  sewer  assessments.2 

Determination  of  Method  of  Assessment 

Section  18.  The  city  council  of  a  city  or  a  town  which  itself  is, 
or  the  officers  of  which  are,  entitled,  under  sections  fourteen  to  seven- 
teen, inclusive,  or  under  any  special  act,  to  assess  upon  land  the  whole 

'Carson  v.  Sewerage  Commissioners  of  Brockton,  175  Mass.  242  (1900),  af- 
firmed, 182  U.  S.  398  (1901).  In  this  case  the  ordinance  charged  for  unmetered 
water  service  eight  dollars  and  for  metered  water  service  thirty  cents  per  thou- 
sand gallons  of  sewage  with  a  minimum  charge  of  eight  dollars. 

1  Taylor  v.  Mayor  and  Aldermen    of  Haverhill,  192  Mass.  287   (1906). 

*St.  1918,  c.  257,  §212,  and  see  Preliminary  Report  of  Commissioners  to 
Consolidate  the  General  Laws,  p.  217. 


718  Taxation  in  Massachusetts 

[G.  L.  c.  83,  §§  18-21 
or  a  part  of  the  'cost  of  laying,  making,  maintaining  or  repairing 
main  drains  or  common  sewers,  may  determine  that  such  assessments 
shall  be  made  by  two  or  more  of  the  methods  provided  in  said  sections 
or  special  acts,  and  may  determine  what  part  of  the  expense  or  esti- 
mated average  cost  shall  be  paid  under  each  method. 

In  addition  to  the  methods  of  levying  sewer  assessments 
provided  by  chapter  eighty-three,  if  a  city  or  town  lays  a  sewer 
through  private  land,  it  may  take  the  necessary  easement  un- 
der the  general  provisions  of  chapter  seventy-nine,  and  levy 
betterment  assessments  under  chapter  eighty. 

Extension  of  Time  for  Payment 

Section  19.  The  aldermen  of  a  city  or  the  sewer  commissioners, 
selectmen  or  road  commissioners  of  a  town  may  extend  the  time  for 
the  payment  of  such  assessments  upon  land  which  is  not  built  upon 
until  it  is  built  upon  or  for  a  fixed  time;  but  interest  at  a  rate  not 
less  than  the  town  pays  upon  any  loan  for  sewer  purposes  shall  be 
paid  annually  upon  the  assessment  from  the  time  it  was  made,  and 
the  assessment  shall  be  paid  within  three  months  after  such  land  is 
built  upon  or  at  the  expiration  of  such  fixed  time. 

The  provisions  of  this  section  do  not  authorize  a  sewer 
assessment  in  excess  of  the  present  enhancement  of  the  market 
value  of  the  land  assessed  resulting  from  the  construction  of 
the  sewer,  but  recognize  that  the  potentiality  of  sewerage  may 
increase  the  market  value  even  of  vacant  land,  although  it 
may  be  a  hardship  to  the  owner  to  pay  the  assessment  before 
the  land  is  capable  of  returning  an  income.1 

Fee  for  the  Use  of  Sewers 
Section  20.  The  owners  of  land  or  parts  thereof  not  liable  to  as- 
sessment, or  not  in  fact  assessed,  may  use  the  common  sewers  for  the 
disposal  of  their  sewage  from  such  land  only  on  payment  of  such 
reasonable  amount  as  the  aldermen  or  the  sewer  commissioners,  select- 
men or  road  commissioners  shall  determine. 

Land  Abutting  Upon  More  Than  One  Way 

Section  21.  If  land  abuts  upon  more  than  one  way,  assessments 
for  sewers  based  wholly  or  in  part  upon  frontage  shall  be  assessed 
'Driscoll  v.  Northbridge,  210  Mass.  151   (1911). 


Sewers,  Drains  and  Sidewalks  719 

G.  L.  c.  83,  §§  21-24] 

upon  the  frontage  upon  one  such  way  and  upon  so  much  of  the  front- 
age upon  such  other  way  as  is  not  exempted  by  the  board  whdse  duty 
it  is  to  make  the  assessment ;  and  such  board  may  exempt  from  assess- 
ment so  much  of  the  frontage  upon  such  other  way  as  they  consider 
just  and  equitable. 

When  a  sewer  runs  on  two  sides  of  a  parcel  of  land  of  mod- 
erate size,  if  the  assessment  is  by  frontage,  such  a  parcel  ia 
doubly  assessed,  and  a  statute  which  made  no  allowance  for 
such  a  situation  would  be  unconstitutional.1 

Sewers  Built  by  Land  Owners 

Section  22.  If  an  ordinance  or  by-law  provides  that  any  drain 
or  sewer  laid  in  any  land  or  way,  public  or  private,  which  is  opened 
or  proposed  to  be  opened  for  public  travel  and  accommodation  shall 
be  a  main  drain  or  common  sewer,  and  such  drain  or  sewer  is  laid 
in  a  private  way  or  land  at  the  expense  of  the  owner  thereof,  his  land 
shall  not  be  assessed  for  such  drain  or  sewer,  except  for  the  cost  of 
connecting  it  with  common  drains  or  sewers  already  established. 

Payment  of  Part  of  Cost  by  the  City  or  Town 

Section  23.  This  chapter  shall  not  prevent  a  town  from  provid- 
ing, by  ordinance  or  otherwise,  that  a  part  of  the  expense  of  laying 
out,  constructing,  maintaining  and  repairing  main  drains  or  common 
sewers  shall  be  paid  by  such  town  ;  and  any  city  except  Boston  and  any 
town  adopting  a  system  of  sewerage  which  had  not,  prior  to  May 
sixth,  eighteen  hundred  and  ninety-two,  actually  levied  assess- 
ments for  the  cost  of  such  system  shall  pay  such  portion,  not  less  than 
one  quarter  nor  more  than  two  thirds,  of  the  cost  of  laying  out,  con- 
structing, maintaining  and  repairing  the  common  sewers  as  the  city 
council  or  the  sewer  commissioners,  selectmen  or  road  commissioners 
may  determine. 

Assessment  for  Particular  Sewers 

Section  24.  The  owner  of  any  land  benefited  by  the  laying  out  of 
a  particular  sewer  from  the  common  sewer  to  the  boundary  of  the  way 
shall  pay  to  the  town  for  the  permanent  privilege  of  using  the  same 
such  reasonable  amount  as  the  aldermen  or  the  sewer  commissioners, 

dexter  v.  Boston,  176  Mass.  247,  252  (1900). 


720  Taxation  in  Massachusetts 

[G.  L.  c.  83,  §§  24,  26 
selectmen  or  road  commissioners  determine,  which  may  be  fixed  at  the 
estimate'd  average  cost  of  all  such  particular  sewers  within  the  terri- 
tory for  which  a  system  of  sewers  has  been  built  or  adopted.  The 
board  or  officers  authorized  to  lay  out  sewers  shall  assess  the  cost  of 
connecting  private  land  with  a  common  sewer  under  section  three 
upon  the  land  so  connected,  and  may  require  that  an  applicant  for  a 
connection  of  his  land  with  a  sewer  shall  pay  in  advance  an  amount 
equal  to  the  estimated  assessment  therefor,  which  shall  be  applied  to 
the  payment  of  the  assessment,  and  the  remainder,  if  any,  shall  be 
repaid  to  the  applicant. 

Sidewalk  Assessments 

Section  26.  In  the  order  for  the  construction  of  a  new  sidewalk 
or  the  reconstruction  of  a  sidewalk  with  material  of  more  permanent 
character  than  that  with  which  it  was  originally  constructed,  the 
board  making  the  order  may  provide  for  the  assessment  of  a  reason- 
able amount,  not  exceeding  one  half  the  cost,  upon  the  abutting 
estates.  If  an  ordinance  or  by-law  so  provides,  the  total  assessed  upon 
any  individual  estate  shall  not  exceed  one  per  cent  of  the  value  thereof 
as  fixed  by  the  last  preceding  annual  assessment  for  taxes. 

The  first  legislation  in  this  commonwealth  in  which  sidewalk 
assessments  were  authorized  consisted  of  special  statutes  grant- 
ing power  to  levy  such  assessments  to  particular  towns  and 
cities.  A  number  of  such  acts  had  been  passed  before  the  date 
of  the  earliest  general  law  concerning  sidewalks,  and  many  such 
statutes  have  been  enacted  since  that  time,  some  of  which  are 
still  in  force.  The  earliest  general  law  was  enacted  in  1855  and 
having  been  continued  in  force  since  then  without  material 
change  constituted  the  first  of  the  three  alternative  systems 
which  were  in  force  prior  to  the  enactment  of  the  General  Laws. 
Under  this  system  one-half  the  expense  was  assessed  upon  abut- 
ting lands  with  no  provision  that  the  walk  should  be  afterward 
maintained  at  public  expense  or  that  previous  assessments  should 
be  deducted ;  and  this  system  to  be  in  force  required  acceptance 
by  the  city  or  town.  The  second  system,  which  also  required 
acceptance,  provided  for  an  assessment  of  one-half  the  expense 
not  exceeding  one  per  cent  of  the  value  of  an  estate,  and  if  the 
walk  was  constructed  of  permanent  materials  any  sum  previously 
paid  was  to  be  deducted  from  the  assessment  and  the  walk 


Sewers,  Drains  and  Sidewalks  721 

G.  L.  c.  83,  §  26] 

thereafter  maintained  at  the  public  expense.  This  system 
originated  in  1872  with  an  amendment  in  1874.  The  third 
system  is  the  same  as  the  second  except  that  the  limit  of  one 
per  cent  of  the  value  of  the  estate  is  lacking  and  there  is  no 
requirement  that  the  statute  be  accepted;  and  it  is  applicable 
only  to  cities.  This  system  was  established  in  1895;  and  it  was 
held  that  it  did  not  supersede  special  provisions  contained  in 
the  various  city  charters  or  the  alternative  systems  of  the  ex- 
isting general  laws,  although  it  came  in  force  as  an  optional 
method  in  cities  which  had  no  special  provisions  whether  they 
had  accepted  the  other  systems  or  not. 

When  the  preparation  of  the  General  Laws  was  in  process, 
the  commissioners  deemed  the  existing  provisions  as  to  side- 
walk assessments  unsatisfactory  because  there  was  no  provision 
for  revocation  of  acceptance,  and  if  a  city  or  town  accepted  a 
later  act  and  it  proved  unsatisfactory  it  had  no  power  to  go 
back  to  an  earlier,  and  because  it  was  often  a  difficult  matter 
for  a  person  whose  land  was  assessed  to  determine  under  which 
system  the  assessment  had  been  made.1  Accordingly  a  single 
uniform  system  was  substituted  for  the  conflicting  and  con- 
fusing provisions  which  had  previously  been  in  force.  Charter 
provisions  and  special  acts  relative  to  sidewalk  assessments  are 
not  superseded  by  the  provisions  of  the  General  Laws;  the  sec- 
tion of  the  chapter  on  betterments  which  provides  that  better- 
ments shall  be,  assessed  only  under  that  chapter  has  no  applica- 
tion to  sidewalk  assessments.2 

In  addition  to  the  power  to  establish  sidewalks  by  authority 
of  the  statute  now  under  consideration,  a  city  or  town  may  lay 
sidewalks  under  its  general  power  to  make  specific  repairs  on 
public  ways,  and  the  order  of  the  aldermen  (or  selectmen  or 
road  commissioners)  establishing  a  sidewalk  must  contain  a 
statement  that  in  their  judgment  the  public  convenience  re- 
quires its  establishment3  to  justify  an  assessment  under  section 
twenty-six.4  Ordinarily  the  laying  of  curbing  is  included  in 
and  is  part  of  the  construction  of  a  sidewalk;  but  if  in  any  in- 

1  See  Preliminary  Report  of  Commissioners,  p.  220. 

2  For  the  method  of  levying  sidewalk  assessments  in  force  in  Boston  see  infra, 
page  722 ;  for  the  special  provisions  as  to  other  cities  see  Copeland  v.  Springfield, 
166  Mass.  498  (1896). 

3  As  provided  in  G.  L.  c.  83,  §25. 

*  Borden  v.  Brockton,  208  Mass.  348  (1911). 


722  Taxation  in  Massachusetts 

[G.  L.  c.  83,  §  26 

stance  curbing  is  necessary  in  order  that  the  street  may  be  safe 
and  convenient,  and  the  aldermen  omit  or  neglect  to  order  the 
curbing  to  be  laid,  the  mayor  may  direct  the  superintendent  of 
streets  to  lay  it,  as  "ordinary  repairs"  necessary  to  make  the 
way  reasonably  safe  and  convenient.5 

It  has  been  held  that  if  an  assessment  is  too  large  in  exceed- 
ing one  per  cent  of  the  assessed  value  the  assessment  is  void 
only  to  the  extent  of  the  illegal  excess  and  a  sale  for  non-payment 
of  such  an  assessment  is  not  void.6 

In  passing  upon  assessments  under  special  charter  provi- 
sions the  courts  have  been  inclined  to  treat  the  performance 
of  requirements  made  for  the  protection  of  the  persons  assessed 
as  a  condition  precedent  to  the  validity  of  the  assessment,7  but 
to  treat  other  requirements  as  merely  directory.8 

Sidewalk  Assessments  in  the  City  of  Boston 

The  first  statute  authorizing  sidewalk  assessments  in  Boston 
was  enacted  in  1799  and  provided  that  when  the  cartway  in  any 
public  street  was  paved,  the  owner  of  each  abutting  lot  should 
at  his  own  expense  cause  the  footway  in  front  of  his  estate  to 
be  paved  with  bricks  or  flat  stones  and  kept  in  repair,  and  if 
he  failed  in  this  duty  the  surveyors  of  highways  might  perform 
it  and  recover  of  the  owner  the  expense.  In  1831  this  provision 
was  extended  to  macademized  ways  and  in  1833  provision  was 
made  for  the  acceptance  of  sidewalks  by  the  city  after  they  had 
been  put  in  repair  by  the  abutters  and  relinquished  to  the  city; 
after  such  relinquishment  and  acceptance  they  were  to  be  main- 
tained at  the  expense  of  the  city. 

In  1872  a  general  statute  applicable  to  all  cities  which  should 
accept  the  same  was  enacted  and  was  accepted  by  the  city  of 
Boston  on  May  21,  1872.  This  is  the  second  system  of  side- 
walk assessments  as  it  stood  before  the  enactment  of  the  General 
Laws  without  the  limitation  of  one  per  cent  of  the  valuation, 

6  Draper  v.  Mayor  of  Fall  River,  185  Mass.  142   (1904). 

8  Lynde  v.  Maiden,  166  Mass.  244   (1896). 

«  Lowell  v.  Wentworth,  6  Cush.  221  (1850)  ;  Lowell  v.  French,  6  Cush,  223 
(1850);  Lowell  v.  Wheelock,  11  Cush.  391  (1853);  Charlestown  v.  Stone,  15 
Gray  40  (1860)  ;  Tufts  v.  Charlestown,  98  Mass.  583  (1868)  ;  Arnold  v.  Cam- 
bridge, 106  Mass.  352  (1871). 

s  Lowell  v.  Hadley,  8  Met.  180  (1844)  ;  Dickinson  v.  Worcester,  138  Mass. 
555   (1885)  ;  Browne  v.  Boston,  166  Mass.  229   (1896). 


Sewers,  Drains  and  Sidewalks  723 

G.  L.  c.  83,  §  26] 

which  was  added  in  1874  and  never  accepted  by  the  city  of  Bos- 
ton. In  1892  a  special  statute  relating  only  to  Boston  was  en- 
acted providing  for  the  assessment  of  the  whole  cost  of  making 
sidewalks  upon  the  abutters  in  proportion  to  frontage  without 
reference  to  actual  benefit  and  without  right  of  appeal.  This 
statute,  in  view  of  later  decisions,  was  probably  unconstitutional. 
Up  to  1893  there  had  been  no  general  repeal  of  inconsistent  pro- 
visions or  reference  to  anything  but  sidewalks  thereafter  built, 
so  that  with  regard  to  existing  sidewalks  the  duty  to  maintain 
depended  upon  the  time  when  they  were  constructed  and  the 
section  of  the  city  in  which  they  were  situated,  for  there  had 
been  special  enactments  in  regard  to  sidewalks  in  some  of  the 
cities  and  towns  subsequently  annexed  to  Boston  which  so  far 
as  the  duty  to  maintain  was  concerned  were  apparently  still  in 
force.  In  1893  another  special  statute  was  enacted,  which  re- 
pealed in  terms  all  acts  inconsistent  therewith  and  provided  for 
the  assessment  of  not  more  than  one-half  the  cost  of  construc- 
tion in  just  proportions  and  the  maintenance  of  the  sidewalks 
at  the  expense  of  the  city.  This  statute  was  substantially  the 
same  as  that  in  force  between  1872  and  1892  and  was  the  equiva- 
lent of  the  third  system  as  it  stood  before  the  enactment  of 
the  General  Laws,  or  the  second  as  it  was  prior  to  the  amend- 
ment of  1874. x  The  board  of  aldermen  was  abolished  and  its 
powers  transferred  to  the  city  council  in  1909  so  that  sidewalk 
assessments  in  Boston  are  now  laid  by  this  body.2 

In  1916  another  special  statute  was  enacted  which  was  super- 
seded in  the  following  year  by  the  statute  now  in  force.3  The 
present  statute  provides  in  substance  that  the  city  council,  with 
the  approval  of  the  mayor,  may  grade,  construct  or  complete 
sidewalks  with  or  without  edgestones  and  cover  them  with 
suitable  material,  and,  if  entry  for  the  purpose  of  construction 
is  made  within  two  years  of  the  order,  may  assess  upon  each 
abutter  a  just  proportion,  not  exceeding  one-half,  of  the  expense 
of  the  sidewalk.  Every  assessment  is  a  lien  from  the  date  of 
entry;  is  payable  within  thirty  days  and  if  not  paid  is  appor- 
tioned into  not  less  than  five  instalments,  one  of  which  is  added 

1  See  generally  on  the  history  of  legislation  concerning  sidewalks  in  Boston, 
Attorney  General  v.  Boston,  142  Mass.  200  (1886)  ;  Gopeland  v.  Springfield,  166 
Mass.  498  (1896). 

2  St.  1909,  c.  486,  §1. 
8Sp.  Acts  1917,  c.  196. 


724  Taxation  in  Massachusetts 

[G.  L.  c.  83,  §§  26,  27 

to  each  annual  tax  bill  upon  the  estate  until  the  whole  is  paid. 
When  sidewalks  are  constructed  with  edgestone  and  covered 
with  brick,  stone,  concrete  or  artificial  stone,  they  are  afterward 
maintained  by  the  city,  and  the  amount  of  any  assessment 
previously  paid  for  construction  with  less  durable  material  is 
deducted  from  the  assessment  levied  for  the  permanent  sidewalk. 

A  sidewalk  assessment,  like  any  other  special  assessment,  can- 
not lawfully  exceed  the  increase  in  market  value  on  each  estate 
assessed  due  to  the  improvement;  and  an  assessment  cannot 
be  levied  upon  property  devoted  to  a  public  use  which  can  derive 
no  benefit  from  the  sidewalk.4 

When  a  sidewalk  is  constructed  as  part  of  a  new  street,  the 
cost  of  the  sidewalk  is  included  in  the  cost  of  the  street  and 
assessed  under  the  street  betterment  laws,  and  it  is  only  when 
a  sidewalk  is  newly  built  in  an  existing  street  that  the  sidewalk 
assessment  laws  come  into  play. 

There  is  an  old  statute  which  is  generally  considered  to  be 
in  force  respecting  the  construction  of  sidewalks  in  streets  which 
have  not  been  laid  out  as  public  ways  but  which  have  been 
opened  or  dedicated  to  public  use  by  the  owners,  or  permitted 
by  the  owners  to  be  used  by  the  public.  This  statute  is  of 
very  doubtful  constitutionality  as  it  appears  to  authorize  taxa- 
tion for  a  use  not  public.5  It  cannot  be  sustained  as  an  ex- 
ercise of  the  police  power  because  it  is  not  limited  in  its  appli- 
cation to  ways  that  are  unsafe.  There  is  moreover  some  doubt 
whether  it  has  not  been  repealed.0 

Lien  for  Sewer  and  Sidewalk  Assessments 

Section  27,  (as  amended  by  St.  1921,  chapter  486,  section  20.) 
Whenever  the  aldermen  of  a  city  or  the  sewer  commissioners,  select- 
men or  road  commissioners  of  a  town  lay  out  or  determine  to  con- 
struct a  sewer  or  drain  in  a  public  way,  or  in  a  way  opened  or  dedi- 
cated to  the  public  use  which  has  not  become  a  public  way,  or  adopt 
an  order  for  the  establishment  or  reconstruction  of  a  sidewalk  for 
such  a  way,  and  assessments  may  be  made  or  charges  imposed  under 
this  chapter  for  the  construction  of  such  improvement  or  the  use 
thereof,  they  shall  forthwith  cause  to  be  recorded  in  the  registry 

*  Boston  v.  Boston  &  Albany  R.  R.  Co.,  170  Mass,  95   (1898). 

"Morse  v.  Stocker,  1  Allen  150  (1861). 

•Nute  v.  Boston  Co-operative  Building  Co.,  149  Mass.  465   (1889). 


Sewers,  Drains  and  Sidewalks  725 

G.  L.  c.  83,  §  27] 

of  deeds  of  the  county  or  district  in  which  such  city  or  town  is  situ- 
ated a  statement  of  their  action,  which  shall  specify  the  ways  in  which 
such  sewer,  drain  or  sidewalk  is  located.  All  assessments  made  or 
charges  imposed  under  this  chapter  upon  any  land  which  abuts  upon 
any  such  way  in  which  such  sewer,  drain  or  sidewalk  is  located  shall 
constitute  a  lien  upon  such  land  from  the  time  such  statement  is  re- 
corded. 

The  purpose  of  the  foregoing  section,  which  was  enacted 
at  the  time  of  the  consolidation  of  the  General  Laws,  was  to  make 
the  incidence  of  the  lien  for  sewer  and  sidewalk  assessments  a 
matter  of  record  in  the  registry  of  deeds,  as  is  provided  in  the 
case  of  betterment  assessments.1  Under  the  laws  as  they  pre- 
viously stood,  the  lien  for  a  sewer  assessment  arose  when  the 
order  for  construction  of  the  sewer  was  adopted,  and  there  was 
no  provision  for  recording  such  an  order  in  the  registry  of  deeds. 
The  assessment  might  be  made  during  an  indefinite  period  after 
the  construction  of  the  sewer  and  the  lien  continued  in  force 
until  two  years  after  the  assessment  was  made.2  The  special 
act  relating  to  the  city  of  Boston  required  the  recording  of  a 
statement  in  the  registry  of  deeds  of  intent  to  construct  a  sewer  in 
any  specified  street,  before  any  lien  could  attach,3  and  a  similar 
provision  was  incorporated  in  the  General  Laws,  in  order  to 
make  certain  the  existence  of  the  lien  and  to  fix  the  time  of  its 
incidence.4 

As  the  statute  originally  stood,  it  applied  only  to  sewers  and 
sidewalks  in  public  ways.  If  a  sewer  was  to  be  built  in  a  way 
dedicated  to  public  use  which  had  not  become  a  public  way,  in 
order  to  establish  a  lien  for  the  assessment  it  was  necessary  to 
proceed  under  the  chapter  on  betterments,  which  might  lawfully 
be  done  in  such  a  case,  for  the  establishment  of  a  sewer  in  a 
private  way  necessarily  involved  the  taking  of  land  by  eminent 
domain.  When  sewer  assessments  in  a  city  were  assessed  at 
a  fixed  uniform  rate  it  was  not  desirable  to  make  an  exception  in 

1  G.  L.  c.  80,  §2. 

2  Thus  in  Hester  v.  Collector  of  Brockton,  217  Mass.  422  (1914)  an  assess- 
ment for  the  construction  of  a  sewer  was  sustained  which  was  made  seventeen 
years  after  the  order  for  construction,  and  long  after  the  land  assessed  had  been 
divided  and  sold  to  different  parties. 

3  St.  1903,  c.  268,  §1. 

4  See  Preliminary  Report  of  Commissioners  to  Consolidate  and  Arrange  the 
General  Laws,  p.  218. 


726  Taxation  in  Massachusetts 

[G.  L.  c.  83,  §§  27,  28 

the  case  of  sewers  in  private  streets  and  accordingly  the  statute 
was  amended  in  1921  so  as  to  extend  to  ways  opened  or  dedicated 
to  the  public  use  which  had  not  become  public  ways. 

Adoption  of  Administrative  Provisions  of  Betterment  Law 

Section  28.  The  provisions  of  chapter  eighty  relative  to  the  ap- 
portionment, division,  re-assessment,  abatement  and  collection  of  as- 
sessments, and  to  interest,  shall  apply  to  assessments  made  under 
this  chapter. 

This  section  originated  at  the  time  of  the  enactment  of 
the  General  Laws,  and  was  intended  to  make  the  administrative 
features  of  sewer  and  sidewalk  assessments  uniform  with  the  pro- 
cedure provided  in  the  chapter  on  betterments,  and  it  super- 
seded twelve  sections  of  the  earlier  statutes  which  provided  for 
the  administration  of  the  different  forms  of  sewer  assessments. 
It  is  to  be  remembered  however  that  it  applies  only  to  assess- 
ments levied  under  chapter  eighty-three  of  the  General  Laws, 
and  that  it  has  no  application  to  sewer  and  sidewalk  assessments 
levied  under  special  acts. 


CHAPTER    85 
REGULATIONS  RELATIVE  TO  WAYS  AND  BRIDGES 
Assessments  for  the  Cost  of  Removing  Snow  from  Sidewalks 

Section  6.  Any  town  which  accepts  this  section  or  has  accepted 
corresponding  provisions  of  earlier  laws,  may  cause  the  snow  and 
ice  to  be  removed  from  its  permanent  sidewalks  constructed  of  brick, 
stone,  cement,  concrete  or  asphalt,  and  may  provide  that  the  asses- 
sors may  assess  upon  the  estates  abutting  on  said  sidewalks,  from 
which  snow  or  ice  has  thus  been  removed,  the  whole  or  any  part  of 
the  cost  of  such  removal ;  and  the  provisions  of  chapter  eighty  rela- 
tive to  the  abatement  and  collection  of  betterments  shall  apply  to 
such  assessments. 

Section  7.  Any  person,  or  the  agent  of  any  person,  owning  an 
estate  abutting  on  any  sidewalk  as  aforesaid,  may,  on  or  before  No- 
vember first  in  any  year,  procure  the  exemption  of  such  estate  from 
the  assessment  aforesaid  for  the  following  year  by  a  stipulation  in 
writing  with  the  selectmen  that  he  will  remove  snow  and  ice  from 
the  sidewalk  on  which  the  estate  abuts,  at  such  time  and  in  such 
manner  as  the  selectmen  or  road  commissioners  shall  direct ;  and  if  he 
fails  to  fulfil  his  stipulation  the  assessment  above  provided  for  shall 
be  made  and  collected  as  if  no  such  stipulation  had  been  made. 

As  early  as  1835  it  was"  held  that  a  by-law  of  the  city  of 
Boston  which  required  the  owners  or  occupants  of  houses  border- 
ing on  streets  to  clear  the  snow  from  the  sidewalks  adjoining  their 
lands  was  valid,  not  as  imposing  a  tax,  but  as  a  reasonable  police 
regulation.1  Since  1857  the  statutes  have  specifically  authorized 
cities  and  towns  to  require  the  removal  of  snow  from  their  side- 
walks by  the  owners  of  abutting  land.2 

Since  1902  the  statutes  have  also  provided  for  the  assess- 
ment of  the  cost  of  removing  snow  as  a  special  assessment 
under  the  power  of  taxation. 

1  Goddard,  Petitioner,  16  Pick.  P04  (1835). 

2  See  G.  L.  c.  85,  §5. 

727 


CHAPTER     111 

PUBLIC  HEALTH 

Assessment  for  Drainage  of  Wet  Lands 

Section  132.  Land  which  is  wet,  rotten  or  spongy,  or  covered 
with  stagnant  water,  so  as  to  be  offensive  to  residents  in  its  vicinity 
or  injurious  to  health,  shall  be  deemed  a  nuisance,  which  the  board 
of  health  of  the  town  where  it  lies,  upon  petition  and  hearing,  may 
abate  in  the  manner  provided  in  the  seven  following  sections;  but  if 
the  expense  of  abatement  will  exceed  two  thousand  dollars,  such 
abatement  shall  not  be  made  without  a  previous  appropriation  there- 
for. 

Section  133.  Whoever  is  injured  by  such  nuisance  may,  by  peti- 
tion describing  the  premises  upon  which  it  is  alleged  to  exist  and 
stating  the  nature  of  the  nuisance  complained  of,  apply  to  the  board 
for  its  abatement ;  whereupon  such  board  shall  view  the  premises  and 
examine  into  the  nature  and  cause  of  such  nuisance. 

Section  134.  Upon  such  examination,  if  the  board  is  of  opinion 
that  the  petition  should  be  granted,  it  shall  appoint  a  time  and  place 
for  a  hearing,  first  giving  reasonable  notice  thereof  to  the  petitioners, 
to  the  persons  whose  lands  it  may  be  necessary  to  enter  upon  to 
abate  the  nuisance,  and  to  any  other  persons  who  may  be  damaged 
or  benefited  by  the  proceedings,  and  to  the  mayor  or  the  chairman 
of  the  selectmen,  unless  the  selectmen  constitute  the  board  of  health, 
that  they  may  be  heard  upon  the  necessity  and  mode  of  abating  such 
nuisance,  the  question  of  damages,  and  of  the  assessment  and  appor- 
tionment of  the  expenses  of  the  abatement. 

Section  135.  Such  notice  shall  be  in  writing,  and  may  be  served, 
by  any  person  authorized  to  serve  civil  process,  by  personal  service 
upon  the  mayor  or  chairman  of  the  selectmen,  the  petitioners,  the 
owner  or  occupant  of  any  land  upon  which  it  may  be  necessary  to 
enter  or  which  may  be  benefited  by  the  abatement,  or  the  authorized 
agent  of  such  owner  or  occupant,  or  by  leaving  an  attested  copy  of 
such  notice  at  the  last  and  usual  place  of  abode  of  such  persons ;  but 
if  the  land  is  unoccupied  and  the  owner  or  agent  is  unknown  or  out 

728 


Public  Health  729 

G.  L.  c.  Ill,  §§  135-138] 

of  the  commonwealth,  the  notice  to  such  owner  may  be  served  by 

posting  an  attested  copy  thereof  upon  the  premises,  or  by  advertis- 
ing in  one  or  more  newspapers  in  such  manner  and  for  such  length 
of  time  as  the  board  may  order. 

Section  136.  At  the  time  and  place  appointed  therefor,  the 
board  shall  hear  the  parties,  and  thereafter  may  cause  such  nuisance 
to  be  abated  by  entering  upon  any  land  and  by  making  such  excava- 
tions, embankments  and  drains  therein  and  under  and  across  any  ways 
as  may  be  necessary;  and  shall  also  determine  in  what  manner  and 
at  whose  expense  the  improvements  shall  be  kept  in  repair,  shall 
estimate  and  award  the  damage  sustained  by  and  the  benefit  accru- 
ing to  any  person  by  reason  of  such  improvements,  and  what  propor- 
tion of  the  expense  of  making  and  keeping  the  same  in  repair  shall  be 
borne  by  the  town  and  by  the  persons  benefited  thereby.  The  board 
shall  forthwith  give  notice  of  its  decision,  in  the  manner  required  in 
the  preceding  section,  to  the  parties  to  whom  notice  is  required  to  be 
given  by  section  one  hundred  and  thirty-four  and  to  the  assessors  of 
said  town.  The  expense  of  making  and  keeping  such  improvements 
in  repair  shall  be  assessed  by  the  assessors  upon  the  persons  benefited 
thereby,  as  ascertained  by  said  decision,  shall  be  included  in  their 
taxes,  shall  be  a  lien  upon  the  land  benefited  thereby,  and  shall  be 
collected  in  the  same  manner  as  other  taxes  upon  land.  Apportion- 
ment of  assessments  under  this  section  may  be  made  and  the  parts 
thereof  be  collected  as  provided  in  chapter  eighty. 

Section  137.  A  person  entitled  to  notice  under  section  one  hun- 
dred and  thirty-four,  who  is  aggrieved  by  the  decision  of  said  board 
or  of  the  commissioners  appointed  under  section  one  hundred  and 
forty  that  the  land  described  in  the  petition  is  a  nuisance,  may  ap- 
peal therefrom  to  the  superior  court,  if,  within  twenty-four  hours 
after  notice  of  such  decision,  he  gives  written  notice  to  said  board 
of  his  intention  so  to  do,  and  within  seven  days  thereafter  files  a  peti- 
tion in  the  superior  court  stating  his  grievance  and  the  action  of  said 
board  thereon,  and  enters  into  such  recognizance  as  said  court  shall 
order.  Said  court  may  hear  and  determine  such  appeal,  pending 
which  all  proceedings  by  the  board  of  health  relative  to  such  nuisance 
shall  be  stayed. 

Section  138.  Whoever  is  aggrieved  by  such  decision  in  the  award 
of  damages  or  in  the  determination  of  benefits  accrued  or  in  the  ap- 
portionment of  the  expense  may,  within  three  months  after  notice 
thereof,  petition*  the  superior  court  under  chapter  seventy-nine  or 


730  Taxation  in  Massachusetts 

[G.  L.  c.  Ill,  §§  138-140 
chapter  eighty,  first  giving  one  month 's  notice  in  writing  to  the  mayor 
and  aldermen  or  selectmen  of  his  intention  so  to  do,  and  particularly 
specifying  therein  his  objections  to  said  decision.  Such  petition  shall 
otherwise  be  made  in  like  manner  and  the  proceedings  thereon  shall 
be  the  same  as  in  case  of  land  taken  or  betterments  assessed  under 
said  chapters,  respectively. 

Section  139.  The  board  shall,  within  thirty  days  after  the  abate- 
ment of  such  nuisance,  make  return  of  its  doings  to  the  town  clerk, 
who  shall  record  them  in  the  town  records. 

Section  140.  If  the  board  unreasonably  refuses  or  neglects  to 
proceed  in  the  matter  of  said  petition,  the  petitioner  may  apply  to  the 
superior  court,  which,  upon  a  hearing  and  for  good  cause  shown,  may 
appoint  three  commissioners,  who  shall  proceed  in  the  manner  pro- 
vided in  sections  one  hundred  and  thirty-three  to  one  hundred  and 
thirty-nine,  inclusive. 

The  foregoing  statutes  were  first  enacted  in  1868  and  are 
intended  to  deal  with  a  different  condition  than  a  nuisance  upon 
the  land  of  a  single  individual  which  he  can  be  compelled  under 
the  police  power  to  abate  at  his  own  expense  on  the  one  hand,1 
or  to  the  compulsory  joint  drainage  of  swamps  and  meadows  in 
which  several  persons  have  a  common  interest  effected  under  the 
police  power  for  their  common  benefit  on  the  other.2  These 
statutes  provide,  in  a  sense,  for  a  public  improvement  and  au- 
thorize the  taking  of  land  by  eminent  domain  and  the  assessment 
of  betterments  under  the  power  of  taxation,  with  all  the  con- 
stitutional safeguards  to  which  each  of  these  powers  is  respec- 
tively subject.3  In  this  respect  these  statutes  resemble  many 
special  acts  which  had  previously  been  passed  and  had  been 
held  constitutional4  and  are  themselves  not  open  to  constitu- 
te supra,  Part  I,  §71;  and  Goddard,  Petitioner,  16  Pick,  503  (1835); 
Salem  v.  Eastern  R.  R.  Co.,  98  Mass.  431  (1868)  ;  Cambridge  v.  Munroe,  126 
Mass.  496,  502  (1879);  Nickerson  v.  Boston,  131  Mass.  306  (1881);  G.  L.  c. 
Ill,  §§123,  124,  125. 

2  See  supra,  Part  I,  §66,  and  Coomes  v.  Burt,  22  Pick.  422  (1839)  ;  Lowell 
v.  Boston,  111  Mass.  454,  469  (1873)  ;  G.  L.  c.  252,  §§1-14,  inc. 

3  Grace  v.  Newton  Board  of  Health,  135  Mass.  490  (1883).  Under  this 
statute  a  nuisance  consisting  of  large  quantities  of  stagnant  water  standing  in 
an  open  drain  may  be  dealt  with,  Grace  v.  Newton  Board  of  Health,  135  Mass. 
490  (1883),  but  not  the  open  end  of  a  house  sewer  built  in  a  private  way  and 
emptying  upon  private  land,  Huse  v.  Amesbury  Board  of  Health,  163  Mass.  240 
(1895). 

4Dingley  v.  Boston,  100  Mass.  544  (1868)  ;  Bancroft  v.  Cambridge,  126  Mass. 
438  (1879). 


Public  Health  731 

[G.  L.  c.  Ill,  §  140 

tional  objection  if  construed  as  they  may  well  be  as  not  author- 
izing an  assessment  in  excess  of  actual  benefit.5 

To  sustain  an  assessment  under  these  statutes  it  is  an  abso- 
lute prerequisite  that  the  owner  of  lands  assessed  be  given  the 
notice  required  by  the  statutes  in  the  manner  therein  prescribed, 
and  actual  knowledge  is  not  sufficient.6  Moreover  the  notice 
is  the  basis  of  the  assessment  and  if  an  improvement  is  eventu- 
ally made  more  extensive  than  described  in  the  notice  an  assess- 
ment cannot  be  levied  for  the  excess.7 

The  requirement  that  an  abatement  shall  not  be  made  with- 
out a  previous  appropriation  if  the  cost  exceeds  two  thousand 
dollars  cannot  be  evaded  by  dividing  up  the  abatement  of  a 
single  nuisance;  but  it  does  not  prohibit  the  abatement  of 
several  separate  nuisances  at  the  same  time  without  an  appro- 
priation although  the  aggregate  cost  exceeds  two  thousand 
dollars.8 

Special  statutes  authorizing  the  filling  of  certain  low  lands 
or  the  straightening  and  improving  of  watercourses  have  fre- 
quently provided  for  assessing  betterments  for  the  benefits  de- 
rived therefrom  and  some  of  the  decisions  under  such  statutes  are 
set  forth  in  the  notes.9 

"Grace  v.  Newton  Board  of  Health,  135  Mass.  490  (1883). 

•Watuppa  Reservoir  Co.  v.  Mackenzie,  132  Mass.  71  (1882);  Grace  v. 
Newton  Board  of  Health,  135  Mass.  490  (1883)  ;  Hall  v.  Staples,  166  Mass.  399 
(1896).  In  the  last  named  case  it  was  held  that  a  person  assessed  could  on  peti- 
tion for  writ  of  certiorari  contradict  the  record  of  the  board  by  parol  evidence 
that  notice  was  not  in  fact  served  upon  him;  and  that  he  was  not  barred  by 
laches  in  having  stood  by  without  objection  until  the  work  was  completed. 

'Grace  v.  Newton  Board  of  Health,  135  Mass.  490  (1883).  In  this  case  it 
was  also  held  that  ( 1 )  the  board  of  health  may  act  by  committee  in  abating  the 
nuisance,  (2)  a  new  notice  of  its  intention  to  make  the  assessment  need  not  be 
given  after  the  hearing,  (3)  if  any  assessments  were  not  sufficiently  specific  by 
reason  of  the  want  of  description  of  the  real  estate  benefited,  it  was  competent 
for  the  board  of  health  to  extend  or  amend  its  record. 

8  United  States  Drainage,  etc.,  Co.  v.  Medford,  225  Mass.  467  (1917).  In  the 
same  case  it  was  held  that  a  contract  for  the  drainage  of  wet  lands  executed  by 
the  board  of  health  of  a  city  was  void  if  it  did  not  have  the  written  approval  of 
the  mayor,  as  required  by  the  city  charter. 

•  In  Lawrence  v.  Webster,  167  Mass.  513  (1897),  it  was  held  that  an  ordinary 
bill  sent  to  an  owner  by  mail  was  sufficient  compliance  with  a  statutory  require- 
ment that  notice  of  the  assessment  should  be  served  forthwith.  In  Beals  v.  James, 
173  Mass.  591  (1899),  it  was  held  that  if  an  owner  received  actual  notice,  he 
could  not  complain  that  it  was  improperly  served.  In  Quinn  v.  James,  174  Mass. 
23  (1899),  it  was  held  that  notice  to  the  owners  that  the  selectmen  intended  to 
assess  a  portion  of  the  expense  upon  the  estates  benefited,  according  to  law,  is  a 
sufficient  notice  that  they  intended  to  act  under  the  law  authorizing  the  assess- 
ment of  betterments ;  also  that  land  may  be  assessed  for  the  benefit  from  the  re- 
moval of  a  stagnant  pool  even  if  it  does  not  abut  on  the  pool. 


CHAPTER     132 

FORESTRY 

Assessment  for  the  Extermination  of  Insect  Pests 

Section  18.  The  mayor  of  every  city  and  the  selectmen  of  every 
town  shall,  on  or  before  November  first  in  each  year,  and  at  such 
other  times  as  he  or  they  shall  see  fit  or  as  the  forester  may  order, 
cause  a  notice  to  be  sent  to  the  owner,  so  far  as  can  be  ascertained,  of 
every  parcel  of  land  therein  which  is  infested  with  said  moths ;  or,  if 
such  notification  appears  to  be  impracticable,  by  posting  such  notice 
on  said  parcels  of  land,  requiring  that  the  eggs,  caterpillars,  pupae 
and  nests  of  said  moths  shall  be  destroyed  within  a  time  specified 
therein.  The  publication  of  the  notice  in  newspapers  published  or 
circulated  in  the  city  or  town  at  least  three  times  during  the  month 
of  October  shall  be  deemed  a  compliance  with  the  law,  if  in  the 
opinion  of  the  mayor  or  selectmen  such  publication  will  be  a  sufficient 
notice. 

When,  in  the  opinion  of  the  mayor  or  selectmen,  the  cost  of  de- 
stroying such  eggs,  caterpillars,  pupae  or  nests  on  land  contiguous 
and  held  under  one  ownership  in  a  city  or  town  shall  exceed  one  half 
of  one  per  cent  of  the  assessed  value  thereof,  a  part  of  said  premises 
on  which  said  eggs,  caterpillars,  pupae  or  nests  shall  be  destroyed 
may  be  designated  in  such  notice,  and  such  requirement  shall  not 
apply  to  the  remainder  of  said  premises.  The  mayor  or  selectmen 
may  designate  the  manner  in  which  such  work  shall  be  done,  but  all 
work  done  under  this  section  shall  be  subject  to  the  approval  of 
the  forester. 

If  the  owner  shall  fail  to  destroy  such  eggs,  caterpillars,  pupae 
or  nests  as  required  by  said  notice,  the  city  or  town,  acting  by  the 
local  superintendent  appointed  under  section  thirteen,  shall,  subject 
to  the  approval  of  the  said  forester,  destroy  the  same,  and  the  amount 
actually  expended  thereon,  not  exceeding  one  half  of  one  per  cent  of 
the  assessed  valuation  of  said  lands,  as  heretofore  specified  in  this 
section,  shall  be  assessed  upon  the  said  lands ;  and  such  an  amount  in 

732 


Forestry  733 

G.  L.  c.  132,  §§  18-20] 

addition  as  shall  be  required  shall  be  apportioned  between  the  city 
or  town  and  the  commonwealth  in  accordance  with  section  fourteen. 
The  amounts  to  be  assessed  upon  private  estates  as  herein  provided 
shall  be  assessed  and  collected,  and  shall  be  a  lien  on  said  estates,  in 
the  same  manner  and  with  the  same  effect  as  in  the  case  of  assess- 
ments for  street  watering. 

Section  19.  If,  in  the  opinion  of  the  assessors  of  a  city  or  town,' 
any  land  therein  has  received,  by  reason  of  the  abatement  of  said 
nuisances  thereon  by  said  forester  or  by  said  city  or  town,  a  special 
benefit  beyond  the  general  advantage  to  all  land  in  the  city  or  town, 
then  the  said  assessors  shall  determine  the  value  of  such  special  benefit 
and  shall  assess  the  amount  thereof  upon  said  land ;  provided,  that  no 
such  assessment  on  lands  contiguous  and  held  under  one  ownership 
shall  exceed  one  half  of  one  per  cent  of  the  assessed  valuation  of  said 
lands;  and  provided,  that  the  owner  or  owners  shall  have  deducted 
from  such  assessment  the  amount  paid  and  expended  by  them  during 
the  twelve  months  last  preceding  the  date  of  such  assessment  toward 
abating  the  said  nuisances  on  said  lands,  if,  in  the  opinion  of  the 
assessors,  such  amount  has  been  expended  in  good  faith.  Such  as- 
sessment shall  be  a  lien  upon  the  land  for  three  years  from  the  first 
day  of  January  next  after  the  assessment  has  been  made,  and  shall  be 
collected  under  a  warrant  of  the  assessors  to  the  collector  of  taxes  of 
such  city  or  town,  in  the  manner  and  upon  the  terms  and  conditions 
and  in  the  exercise  of  the  powers  and  duties,  so  far  as  they  may  be 
applicable,  prescribed  by  chapter  sixty,  and  real  estate  sold  under 
such  warrant  shall  be  subject  to  the  provisions  of  said  chapter  relative 
to  land  sold  for  taxes. 

Section  20.  A  person  aggrieved  by  such  assessment  may  appeal 
to  the  superior  court  for  the  county  where  the  land  lies,  by  entering 
a  complaint  in  said  court  within  thirty  days  after  he  has  had  actual 
notice  of  the  assessment,  which  complaint  shall  be  determined  as  other 
causes  by  the  court  without  a  jury.  The  complaint  shall  be  heard  at 
the  first  sitting  of  said  court  for  trials  without  a  jury  after  its  entry ; 
but  the  court  may  allow  further  time,  or  may  advance  the  case  for 
speedy  trial,  or  may  appoint  an  auditor  as  in  other  cases.  The  court 
may  revise  the  assessment,  may  allow  the  recovery  of  an  amount 
wrongfully  assessed  which  has  been  paid,  may  set  aside,  in  a  suit 
begun  within  three  years  from  the  date  thereof,  a  collector's  sale 
made  under  an  erroneous  assessment,  may  award  costs  to  either  party, 
and  may  render  such  judgment  as  justice  and  equity  require. 


734  Taxation  in  Massachusetts 

[G.  L.  c.  132,  §§  21-26  inc. 

Section  21.  If,  in  the  opinion  of  the  assessors,  the  owner  of  an 
estate  upon  which  an  assessment  has  been  made  is,  by  reason  of  age, 
infirmity  or  poverty,  unable  to  pay  the  assessment,  they  may  upon 
application  abate  the  same. 

Section  22.  A  person  aggrieved  by  the  taxes  assessed  upon  him 
for  the  suppression  of  gypsy  and  brown  tail  moths,  pursuant  to  sec- 
tion eighteen  or  nineteen,  may,  within  six  months  after  the  date  of 
the  first  tax  bill  issued  on  account  of  the  taxes  complained  of,  apply 
to  the  assessors  for  the  abatement  thereof,  who  may  make  such  abate- 
ment as  they  deem  reasonable. 

Section  23.  The  assessors  shall  not  abate  a  tax  under  the  pre- 
ceding section  except  upon  the  written  recommendation  of  the  local 
superintendent  who  certified  the  assessment  in  question  to  the  assessors 
or  provided  them  with  the  information  as  to  the  work  performed, 
upon  which  such  tax  was  assessed,  unless  the  error  or  excess  com- 
plained of  originated  in  the  work  of  the  assessors  who  laid  the  tax. 

Section  24.  The  assessors  shall  keep  a  record  of  all  such  taxes 
abated  and  shall  preserve  for  three  years  all  written  recommenda- 
tions received  under  the  preceding  section.  They  shall  furnish  the 
collector  of  taxes  with  a  certificate  of  each  abatement,  which  shall 
relieve  him  from  the  collection  of  the  sum  abated. 

Section  25.  The  city  forester,  superintendent  or  other  person 
having  charge  of  the  suppression  of  gypsy  and  brown  tail  moths  in 
each  city  and  town  in  the  commonwealth,  or,  where  there  is  no  such 
person,  the  tree  warden  may  destroy  within  the  limits  of  his  city  or 
town  the  tent  caterpillar,  leopard  moth  and  elm  beetle  or  any  other 
tree  or  shrub  destroying  pest,  if  authorized  so  to  do  by  the  mayor 
and  city  council  or  by  the  selectmen  in  towns. 

Section  26.  The  city  forester  or  other  officer  designated  in  the 
preceding  section  may  enter  upon  private  land,  and  the  owners  of 
private  land  may  be  taxed  for  work  done  under  said  section  as  pro- 
vided by  sections  eighteen  and  nineteen;  provided,  however,  that 
nothing  contained  in  this  section  shall  require  the  commonwealth  to 
pay  any  part  of  any  such  expense  other  than  for  the  suppression  of 
the  gypsy  and  brown  tail  moths,  that  no  land  shall  be  assessed  here- 
under which  has  been  assessed  the  maximum  amount  provided  by 
said  sections  eighteen  and  nineteen  for  the  suppression  of  the  gypsy 
and  brown  tail  moths,  and  that  the  aggregate  assessment  on  any 
parcel  of  private  land  for  the  suppression  of  the  tent  caterpillar, 


Forestry  735 

G.  L.  c  132,  §§  26-29  inc.] 

leopard  moth,  elm  beetle  and  gypsy  and  brown  tail  moths  shall  not 

exceed  the  maximum  provided  by  said  sections. 

Section  27.  To  assist  in  exterminating  gypsy  and  brown  tail 
moths,  the  local  moth  superintendent  in  any  city  or  town  may  furnish, 
at  cost,  to  any  owner  of  real  estate  situated  within  such  city  or  town 
arsenate  of  lead.  It  shall  be  used  only  for  the  suppression  of  gypsy 
and  brown  tail  moths  and  only  upon  land  of  the  purchaser. 

Section  28.  The  amounts  due  for  material  furnished  under  the 
preceding  section  shall  be  charged  by  the  local  moth  superintendent 
to  the  owners  of  private  estates,  and  shall  be  collected  in  the  same 
way  as  amounts  assessed  for  private  work,  and  shall  be  a  lien  on  said 
estates  in  the  same  manner  as  said  assessments.  The  amount  thus 
charged  shall  be  deducted  from  the  total  amount  expended  in  each 
city  or  town  in  the  suppression  of  the  gypsy  and  brown  tail  moths 
as  provided  in  section  fifteen. 

Section  29.  To  assist  in  exterminating  insect  pests  the  city  for- 
ester, local  moth  superintendent  or  tree  warden  in  any  city  or  town 
may  obtain  from  the  forester,  at  cost,  arsenate  of  lead.  It  shall  be 
used  only  for  the  suppression  of  gypsy  and  brown  tail  moths,  the 
tent  caterpillar,  leopard  moth  and  elm  beetle,  and  only  upon  lands 
owned  or  controlled  by  the  city  or  town.  The  cost  of  said  material 
shall  be  certified  by  the  forester  to  the  state  treasurer,  and  shall  be 
collected  by  him  as  an  additional  state  tax  upon  the  city  or  town 
making  such  purchase. 

It  was  provided  in  1902  that  a  city  or  town  should  be  liable 
for  damage  to  land  caused  by  entry  of  its  employees  engaged 
in  destroying  the  specified  insect  pests,  but  that  the  benefit  to 
the  land  from  the  destruction  of  the  pests  might  be  set  off  from 
the  damage.  In  1905  provision  for  assessment  was  made  and 
the  statute  then  enacted  is  with  certain  amendments  still  in 
force.  The  provisions  in  regard  to  abatement  by  local  assessors 
were  added  in  1911. 


CHAPTER     143 

INSPECTION,  REGULATION  AND  LICENSES  FOR 

BUILDINGS 

Notice  to  Assessors  of  Building  Permits 

Section  61.  The  inspector  of  buildings  in  every  city  and  town 
having  such  an  officer  shall  give  written  notice  to  the  assessors  thereof 
of  the  granting  by  him  of  permits  for  the  construction  of  any  build- 
ing therein  or  for  any  substantial  alteration  therein  or  addition 
thereto. '  Such  notice  shall  be  given  within  seven  days  after  the  grant- 
ing of  each  permit,  and  shall  state  the  name  of  the  person  to  whom 
the  permit  was  granted  and  the  location  of  the  building  to  be  con- 
structed or  altered  or  to  which  an  addition  is  to  be  made. 


736 


CHAPTER     147 

STATE  AND  OTHER  POLICE 

Tax  on  Gross  Receipts  of  Boxing  Matches 

Section  40.  Every  licensee  holding  or  conducting  any  such  box- 
ing or  sparring  match  or  exhibition  shall,  within  seventy-two  hours 
after  its  conclusion,  pay  to  the  state  treasurer  a  sum  equal  to  five  per 
cent  of  the  total  gross  receipts  from  the  sale  of  tickets  or  from  admis- 
sion fees;  provided,  that  if  such  match  or  exhibition  is  conducted  as 
an  incidental  feature  in  an  event  or  entertainment  of  a  different 
character,  such  portion  of  the  total  receipts  shall  be  paid  to  the  com- 
monwealth as  the  commission  may  determine  or  as  may  be  fixed  by 
rule  adopted  under  section  forty-six.  Within  said  time  the  licensee 
shall  furnish  to  the  commission  a  report,  duly  verified  by  the  treas- 
urer and  secretary,  showing  the  exact  number  of  tickets  sold  and 
admission  fees  collected  for  the  contest,  and  the  gross  receipts  thereof, 
and  such  other  data  as  the  commission  may  require. 

Section  47.  The  remainder  of  the  sums  received  under  section 
forty,  after  paying  the  expense  to  the  commonwealth  of  administering 
sections  thirty-two  to  forty-seven,  inclusive,  shall,  annually  on  or 
before  November  first,  be  distributed  by  the  state  treasurer  to  the 
several  towns  in  proportion  to  the  amounts  collected  from  licensees 
acting  therein  under  said  sections. 


737 


CHAPTER     156 
BUSINESS  CORPORATIONS 

Organization  and  Filing  Fees 

Section  53.  The  fee  for  filing  and  recording  the  articles  of  or- 
ganization required  by  section  ten,  including  the  issuing  by  the  state 
secretary  of  the  certificate  of  incorporation,  shall  be  one  twentieth  of 
one  per  cent  of  the  total  amount  of  the  authorized  capital  stock  with 
par  value,  and  five  cents  a  share  for  all  authorized  shares  without  par 
value,  as  fixed  by  the  articles  of  organization,  but  not  in  any  case 
less  than  fifty  dollars. 

Section  54.  The  fee  for  filing  and  recording  the  certificate  re- 
quired by  section  forty-three  providing  for  an  increase  of  capital 
stock  shall  be  one  twentieth  of  one  per  cent  of  the  amount  of  stock 
with  par  value  and  five  cents  a  share  for  all  shares  without  par 
value,  by  which  the  capital  is  increased,  but  not  in  any  case  less  than 
twenty  dollars. 

Section  55.  The  fees  for  filing  all  other  certificates,  statements 
or  reports  required  by  law  of  corporations  shall  be  ten  dollars  for 
each  certificate,  statement  or  report,  but  no  fee  shall  be  paid  for  filing 
the  certificate  of  change  of  officers  or  of  annual  meeting  required  by 
section  twenty-four  or  twenty-nine  or  the  annual  tax  return  required 
by  sections  thirty-five  and  forty  of  chapter  sixty-three. 

It  is  not  entirely  clear  whether  the  charges  imposed  by 
the  foregoing  sections  constitute  excises  levied  under  the  power 
of  taxation  or  fees  no  larger  in  amount  than  may  be  regarded 
as  necessary  to  bear  the  expenses  of  maintaining  and  caring 
for  the  record.  As  originally  imposed  they  were  doubtless  in- 
tended merely  as  fees,  but  they  have  been  increased  in  amount 
in  recent  years  so  as  to  yield  a  substantial  revenue.1  If  merely 
fees  there  is  no  provision  of  law  which  authorizes  a  proceeding 

1  In  Lever  Bros.  Co.  v.  Commonwealth,  232  Mass.  22  (1919),  it  was  held  that 
a  fee  of  five  dollars  for  filing  a  certificate  of  condition  was  not  a  tax  but  a  filing 
fee;  but  in  Hood  Rubber  Co.  v.  Commonwealth,  238  Mass.  369  (1921),  the  fee 
for  an  increase  in  capital  stock  was,  by  agreement  of  the  parties,  treated  as  an 
excise. 

738 


Business  Corporations  739 

G.  L.  c.  156,  §§  53-55] 

against  the  commonwealth  to  recover  back  such  a  charge  if 
wrongfully  exacted.2 

When  a  corporation,  at  a  single  meeting  and  as  part  of  one 
transaction,  reduces  the  value  of  its  outstanding  capital  stock 
and  authorizes  the  issue  of  new  stock  but  not  in  excess  of  the 
amount  by  which  the  existing  stock  was  reduced,  it  is  not  obliged 
to  pay  a  fee  on  the  new  issue  of  stock,  since  there  is  no  increase 
in  capital.3  In  1920,  provision  was  made  for  imposing  a  fee  on 
the  issue  of  stock  without  par  value.4  Such  a  law  is  not  uncon- 
stitutional in  imposing  a  charge  on  stock  without  par  value  equal 
to  that  on  stock  having  a  par  value  of  one  hundred  dollars  for 
each  share,  although  the  actual  value  of  stock  without  par  value 
may  be  less;5  but  the  tax  is  imposed  only  when  the  capital  is 
increased  and  the  substitution  of  shares  without  par  value  for 
those  with  par  value  is  not  taxable  even  if  the  number  of  shares 
is  increased,  provided  the  surplus  of  tjie  corporation  is  not  cap- 
italized.6 


2  Lever  Bros.  Co.  v.  Commonwealth,  232  Mass.  22  (1919). 
"Commonwealth  v.  United  States  Worsted  Co.,  220  Mass.  183  (1915). 

4  St.  1920,  c.  349,  §§8,  9. 

5  See  American  Uniform  Co.  v.  Commonwealth,  237  Mass.  42  ( 1921 ) . 

6  Hood  Rubber  Co.  v.  Commonwealth,  238  Mass.  369  (1921).  As  to  filing  fees 
for  other  classes  of  corporations,  see  G.  L.  c.  158,  §43;  c.  164,  §33;  c.  181,  §23. 
If  there  is  an  increase  in  capital  the  filing  fee  is  payable.  Olympia  Theatres,  Inc. 
v.  Commonwealth,  238  Mass.  374  (1921). 


[G.L.c.  160,  c.  161 

CHAPTER     160 
RAILROADS 

Taxation  of  Railroad  Property 

Section  87.  Land,  outside  the  location  of  the  railroad  five  rods  in 
width,  taken  or  purchased  for  railroad,  depot  or  station  purposes 
shall  not  be  exempt  from  taxation. 

Before  any  statute  specifically  regulated  the  taxation  of 
railroad  property,  it  was  held  that  the  location  of  a  railroad, 
five  rods  in  width,  which  it  was  authorized  to  acquire  by  eminent 
domain,  was  exempt  from  taxation,1  as  property  devoted  to 
the  public  use;2  but  that  property  outside  its  location  which  a 
railroad  company  had  lawfully  acquired  for  car-houses  and  other 
buildings  to  be  used  exclusively  for  the  purposes  of  the  railroad 
was  taxable.3  The  statute  recited  above,  first  enacted  in  1853, 
appears  to  be  merely  declaratory  of  the  law  as  it  previously 
existed,  and  although  it  does  not  specifically  provide  that  the 
location  of  a  railroad  five  rods  in  width  shall  be  exempt  from 
taxation,  the  inference  is  so  plain  that  it  has  never  been  ques- 
tioned.4 Although  only  an  easement  is  taken  for  railroad  pur- 
poses, the  fee  in  a  railroad  location  is  not  taxable  to  the  owner.6 

1  Worcester  v.  Western  Railroad  Corporation,  4  Met.  564  (1842). 

3  See  supra,  page  217. 

•Boston  &  Maine  Railroad  v.  Cambridge,  8  Cush.  237   (1851). 

*  In  Charlestown  v.  Middlesex  County  Commissioners,  1  Allen  199  (1861), 
it  was  held  that  when  a  railroad  was  authorized  by  statute  to  file  a  new  loca- 
tion", the  new  location  was  exempt.  In  Norwich  &  Worcester  R.  R  Co.  v.  Worces- 
ter County  Commissioners,  151  Mass.  69  (1890),  it  was  held  that  when  a  rail- 
road company  had  purchased  a  single  parcel  "for  station  purposes,  and  for  tracks 
and  yard  room,  to  be  used  in  connection  therewith,"  the  whole  was  taxable. 

BLancy  v.  Boston,  186  Mass.  128  (1904). 


CHAPTER     161 

STREET  RAILWAYS 

Assessments  on  Street  Railway  Companies  for  Widening  or 

Altering  Public  Ways 

Section  78.  If  application  is  made  for  a  location  in  a  public 
way  where  no  street  railway  tracks  are  located,  and  such  way  is 

740 


Street  Railways  741 

G.  L.  c.  164] 

widened  under  chapter  eighty  or  eighty-two  by  an  order  declaring 
the  widening  to  be  necessary  for  public  convenience  for  the  purpose 
of  granting  such  location  of  street  railway  tracks  therein,  a  propor- 
tionate share  of  the  expense  of  such  widening  may  be  assessed  upon  a 
company  accepting  a  location  in  the  way  so  widened ;  but  the  amount 
of  such  assessment,  in  addition  to  the  amounts  assessed  on  real  estate, 
shall  not  exceed  one  half  of  the  total  cost  of  such  widening. 

Section  79.  If  a  public  way  where  the  tracks  of  a  company  have 
been  located  for  a  period  of  five  years  is  altered,  or  if  the  grade 
thereof  is  changed  under  chapter  eighty  or  eighty-two,  the  company 
shall  pay  such  proportionate  share  of  the  expense  thereof,  including 
therein  the  necessary  cost  of  changing  its  railway  to  conform  to  such 
alteration  or  change  of  grade,  as  may  be  assessed  upon  it,  provided 
that,  if  betterments  are  assessed,  no  such  assessment  on  the  company 
shall  exceed  the  aggregate  amount  of  all  the  betterments  assessed 
upon  real  estate,  and  that  in  no  case  shall  such  assessment  exceed  one 
quarter  of  the  total  cost  of  such  alteration  or  change  of  grade. 

Section  80.  The  provisions  of  chapter  eighty  relative  to  the  as- 
sessment of  betterments  on  real  estate,  so  far  as  applicable,  shall  apply 
to  assessments  made  under  the  two  preceding  sections. 


CHAPTER     164 

MANUFACTURE  AND  SALE  OF  GAS  AND 
ELECTRICITY 

Assessment  of  Cost  of  Laying  Pipes  and  Wires 

Section  61.  A  town  acquiring  a  plant  may  provide  by  ordinance 
or  by-law  for  the  equitable  assessment  upon  the  owner  or  occupant  of 
any  premises  of  the  cost,  or  any  part  thereof,  of  laying  and  main- 
taining pipes,  conduits,  conductors  or  other  appliances  thereon.  Pay- 
ment of  such  assessments  shall  not  be  compulsory,  but  it  shall  be  a 
condition  precedent  to  the  supplying  of  gas  or  electricity  to  the 
occupants  of  such  premises,  and  may  be  required  before  providing 
»rr>} ijineos  therefor. 


742  Taxation  in  Massachusetts 

[G.  L.  c.  175,  c.  184 
CHAPTER     175 

INSURANCE 

Liability  of  Insurance  Companies  to  Taxation 

Section  19.  Every  company  shall  be  liable  to  taxation  by  any 
general  law  taxing  insurance  companies,  and  it  shall  by  its  proper 
officers  make  to  the  commissioner  of  corporations  and  taxation  the 
returns  and  statements  of  its  business  and  affairs  required  by  law  for 
the  assessment  of  such  taxes,  and  thereupon  its  officers  and  agents  may 
be  examined  on  oath  by  the  officer  to  whom  such  returns  are  to  be 
made. 


CHAPTER  184 

GENERAL  PROVISIONS  RELATIVE  TO  REAL 

PROPERTY 

Covenants  against  Encumbrances 

Section  22.  Whoever  conveys  real  property  by  a  deed  or  mort- 
gage which  contains  a  covenant  that  it  is  free  from  all  encumbrances 
shall,  if  it  appears  by  a  public  record  that  an  actual  or  apparent  en- 
cumbrance, known  or  unknown  to  him,  exists  thereon,  be  liable  in  an 
action  of  contract  to  the  grantee,  his  heirs,  executors,  administrators, 
successors  or  assigns,  for  all  damages  sustained  in  removing  the  same. 

The  foregoing  statute  was  first  enacted  in  1855.  Its  effect 
was  two-fold.  (1)  It  created  the  right  to  sue  for  removing  an 
encumbrance  which  appeared  of  record  to  be  valid  although 
for  some  reason  not  apparent  on  the  record  it  was  invalid.  (2) 
It  made  the  right  to  sue  for  removing  an  encumbrance  appearing 
of  record  a  right  that  ran  with  the  land.  Recovery  could  not 
be  had  under  the  statute  however,  even  for  nominal  damages, 
unless  money  had  been  actually  paid  to  remove  the  encumbrance, 
and  it  did  not  apply  to  encumbrances  which  were  neither  real 
nor  apparent,  so  that  a  purchaser  could  not  recover  the  expense 
incurred  for  obtaining  releases  from  the  holder  of  a  tax  title  to 


General  Provisions  Relative  to  Real  Property  743 

G.  L.  c.  184,  §  22] 

the  property  which  was  void  on  its  face.1  It  was  held  in  1885 
that  the  statute  had  no  application  to  encumbrances  appearing 
of  record  in  any  other  place  than  the  registry  of  deeds  and 
consequently  did  not  include  tax  liens  unless  they  had  been  en- 
forced by  sale.  In  the  Revised  Laws  the  wording  was  changed 
from  "appears  of  record"  to  "  appears  by  a  public  record"  upon 
the  recommendation  of  the  commissioners  who  prepared  the 
revision,  for  the  express  purpose  of  including  tax  liens,  and  there 
can  be  no  doubt  that  the  statute  now  applies  to  liens  for  unpaid 
taxes.3 

The  lien  for  a  tax  goes  into  effect  and  becomes  an  encum- 
brance upon  the  first  moment  of  April  first  in  each  year,  although 
it  is  not  actually  assessed  until  later,  and  if  a  deed  containing 
a  covenant  against  encumbrances  is  given  on  or  after  April 
first  and  contains  no  exception  in  favor  of  taxes  of  the  current 
year,  the  vendor  is  liable  on  the  covenant,  although  the  tax 
had  not  been  actually  assessed  at  the  time  of  conveyance;4  but 
the  purchaser  can  recover  only  nominal  damages  if  his  possession 
has  not  been  disturbed  and  he  has  not  paid  the  tax  at  the  time 
of  the  trial.5  If  he  has  paid  the  tax  he  is  entitled  to  recover  the 
full  amount  of  it,  without  apportionment  and  with  such  other 
necessary  expenses  as  he  has  been  put  to  in  removing  the  en- 
cumbrance.6 If  the  vendee  has  given  a  note  secured  by  mortgage 
of  the  property  sold  as  part  payment  he  may  recoup  what  he 
paid  to  relieve  the  land  from  the  encumbrance  in  an  action  by 
the  vendor  on  the  note,7  or  the  amount  so  paid  by  him  should 
be  deducted  by  the  court  in  determining  how  much  is  due  on 
the  mortgage  in  a  writ  of  entry  to  foreclose.8 

Of  course  if  the  taxes  of  the  previous  years  have  not  been 
paid,  even  if  not  assessed  to  the  vendor,  and  the  lien  has  not 

Gibbets  v.  Leeson,  148  Mass.  102  (1888). 

2  Carter  v.  Peak,  138  Mass.  439  (1885). 

8  The  valuation  and  assessment  lists  of  the  assessors  are  public  records. 
Commonwealth  v.  Segee,  218  Mass.  501   (1914). 

4  Cochran  v.  Guild,  106  Mass.  29  (1870);  Hill  v.  Bacon,  110  Mass.  387 
(1872)  ;  Davis  v.  Bean,  114  Mass.  358  (1874.  In  Hill  v.  Bacon,  supra,  the  con- 
veyance was  made  on  the  day  the  lien  went  into  effect. 

5Bradshaw  v.  Crosby,  151  Mass.  237  (1890).  See  also  Tibbets  v.  Leeson,  148 
Mass.  102  (1888). 

"Coburn  v.  Litchfield,  132  Mass.  449  (1882)  ;  Bradshaw  v.  Crosby,  151  Mass. 
237  (1890)  ;  Richmond  v.  Ames,  164  Mass.  467,  475  (1895)  ;  Smith  v.  Abington 
Savings  Bank,  171  Mass.  178  (1898). 

7  Davis  v.  Bean,  114  Mass.  358   (1874). 

"Davis  v   Bean,  114  Mass.  360  (1874). 


744  Taxation  in  Massachusetts 

[G  L  c  184,  §  22 

expired  by  the  lapse  of  two  years  from  the  first  day  of  October 
in  the  year  for  which  they  are  assessed;  and  a  fortiori  if  the 
land  has  been  sold  for  non-payment  of  such  taxes,  the  covenant 
against  encumbrances  is  broken.9  It  is  incumbent  upon  the  pur- 
chaser in  an  action  for  breach  of  the  covenant  to  show  that 
there  was  a  real  encumbrance,  and  if  it  appears  that  a  tax  had 
been  improperly  assessed  upon  the  property,  or  that  the  lien 
had  been  lost  by  invalid  proceedings  for  its  enforcement  there 
is  no  encumbrance  and  consequently  no  liability.10  A  mere  error 
in  the  assessment  which  though  it  invalidates  the  tax  may  be 
corrected  by  re-assessment  is  a  defense  to  an  action  on  a  coven- 
ant against  encumbrances,  for  there  is  no  lien  on  the  land  if 
there  is  an  alienation  before  re-assessment.11 

When,  notwithstanding  a  covenant  against  encumbrances, 
there  is  an  oral  agreement  that  the  purchaser  pay  the  tax  for 
the  current  year,  such  an  agreement  is  binding  and  may  be 
enforced  against  the  purchaser;12  but  an  agreement  to  pay  taxes 
applies  only  to  taxes  legally  assessed.13 

The  collector,  if  he  sees  fit,  may  maintain  an  action  at  law 
against  the  person  assessed  to  recover  a  tax  on  real  estate,  al- 
though the  person  assessed  has  disposed  of  the  property,14  but  if 
under  such  circumstances  the  purchaser  has  agreed  to  pay  the 
tax,  the  vendor  by  equitable  proceedings  may  be  subrogated  to 
the  rights  of  the  collector  against  the  land  and  may  thus  reim- 
burse himself  for  the  money  he  has  wrongfully  been  compelled 
to  pay.45  One  who  has  sold  land  without  covenant  against  en- 
cumbrances is  not  bound  to  reimburse  the  purchaser  for  any 
part  of  the  taxes  which  the  latter  is  obliged  to  pay  to  save  the 
land  from  sale.16  When  there  is  no  covenant  against  encum- 
brances in  a  conveyance  of  land  and  no  agreement  or  understand- 
ing between  the  parties  in  regard  to  the  payment  of  the  cur- 
rent tax,  the  collector  may  thus  impose  the  ultimate  liability 
to  the  tax  upon  either  of  the  parties  that  he  may  for  any  reason 

°Charland  v.  Home  for  Aged  Women,  204  Mass.  563   (1910). 
10Tibbets  v.  Leeson,  148  Mass.  102  (1888). 
11  G.  L.  c.  59,  §77,  supra,  page  306. 
"Preble  v.  Baldwin,  6  Cush.  549   (1850). 

13 Massachusetts  General  Hospital  v.  Boston,  212  Mass.  20  (1912). 
"Richardson   v.    Boston,    148    Mass.    508    (1889);    Webber    Lumber    Co.    v. 
Shaw,  189  Mass.  366   (1905). 

"Webber  Lumber  Co.  v.  Shaw,  189  Mass.  366  (1905). 
"Swan  v.  Emerson,  129  Mass.  289   (1880). 


General  Provisions  Relative  to  Real  Property  745 

G.  L.  c.  184,  §  22] 

select,  by  exercising  his  choice  of  suing  for  the  tax  or  selling 
the  land,  and  the  party  who  is  obliged  to  pay  the  tax  can  make 
no  claim  on  the  other  for  reimbursement  or  contribution. 

The  most  common  provision  for  the  payment  of  current 
taxes  in  an  agreement  for  the  sale  of  real  estate  is  an  agreement 
that  the  tax  shall  be  apportioned,  that  is,  the  vendor  pays  the 
same  proportion  of  the  tax  as  the  number  of  days  from  the  first 
of  April  to  the  date  of  the  conveyance  bears  to  the  total  num- 
ber of  days  in  the  year,  and  the  purchaser  pays  the  balance. 
If  the  tax  has  not  been  paid  at  the  time  of  conveyance,  the  ven- 
dor's share  is  deducted  from  the  purchase  price,  but  if  the  vendor 
has  already  paid  the  tax  the  purchaser's  share  is  added  to  the 
purchase  price.  When  it  is  provided  in  an  agrement  for  the 
sale  of  real  estate  that  taxes  for  the  current  year  shall  be  "appor- 
tioned" or  "adjusted,"  such  an  arrangement  is  ordinarily  what 
is  meant.17  This  right  of  apportionment,  however,  rests  entirely 
on  the  express  agreement  of  the  parties;  the  collector  of  taxes 
is  under  no  obligation  to  recognize  it  and  it  has  never  been  held 
by  the  courts  that  in  the  absence  of  an  express  agreement,  the 
taxes,  as  between  vendor  and  vendee,  should  be  apportioned 
either  on  account  of  the  general  custom  or  the  obvious  fairness 
of  such  an  arrangement. 

special  assessments 

When  real  estate  is  conveyed  with  a  covenant  against  encum- 
brances, the  existence  of  a  lien  on  the  property  for  a  special 
assessment  or  betterment  is  of  course  a  breach  of  the  covenant, 
and  the  right  of  the  purchaser  or  his  assigns  to  sue  for  the  breach 
is  the  same  as  when  the  encumbrance  consists  of  a  lien  for  the 
general  tax.  WThen  the  covenant  is  not  against  encumbrances 
generally,  but  refers  in  terms  to  "taxes"  as  a  subject  of  exclusion 
or  inclusion,  "taxes"  will  or  will  not  be  held  to  signify  special 
assessments  according  as  the  intent  of  the  parties  is  indicated 
by  the  context.18 

It  was  formerly  the  law  that  the  lien  went  into  effect  and 
the  encumbrance  began  upon  the  date  of  the  order  for  the  lay- 

1?  Sleeper  v.  Nicholson,  201  Mass.  110  (1909)  ;  J.  L.  Hammett  Co.  v.  Alfred 
Peats  Co.,  217  Mass.  520  (1914). 

"Smith  v.  Abington  Savings  Bank,  165  Mass.  285  (1896);  Williams  v. 
Monk,  179  Mass.  22  (1901). 


746  Taxation  in  Massachusetts 

[G.  L.  c.  184,  §  22 

ing  out  of  the  public  improvement  upon  which  the  assessment 
was  based,  even  if  the  assessment  was  not  made  until  later,  and 
consequently  a  vendor  was  liable  upon  his  covenant  if  there 
had  been  such  an  order  prior  to  his  conveyance  even  if  he  knew 
nothing  about  it,  no  land  of  his  was  taken  and  no  assessment 
was  in  existence  at  the  time  of  the  conveyance.19  It  was  the 
liability  to  an  assessment  that  constituted  the  encumbrance; 
and  the  liability  was  an  encumbrance  upon  the  land  when  it 
accrued  even  though  its  amount  might  not  be  known  and  the 
present  right  of  enforcement  might  not  come  into  existence  until 
the  assessment  was  afterward  made.20  Under  the  redrafting  of 
the  betterment  laws  which  occurred  at  the  time  of  the  consoli- 
dation of  the  General  Laws,  the  further  establishment  of  these 
unrecorded  liens  was  guarded  against,  and  since  January  first, 
1921  no  lien  can  arise  without  the  filing  of  an  order  in  the  registry 
of  deeds,  either  in  the  case  of  a  betterment  assessment21  or  an 
assessment  for  the  construction  of  sewers.22 

When  a  special  assessment  is  invalid  for  technical  error,  if 
the  proper  officers  could  correct  the  error  by  proceedings  in  due 
form,  and  re-assess  the  same  amount  upon  the  land  and  sell  the 
land  if  the  re-assessment  was  not  paid,  such  error  in  an  assess- 
ment is  no  defense  in  an  action  on  a  covenant  against  encum- 
brances.23 If,  however,  the  only  statute  under  which  an  assess- 
ment could  have  been  made  at  the  time  of  the  conveyance  was 
unconstitutional,24  or  the  improvement  was  constructed  in  such 
a  manner  that  under  the  existing  statutes  no  valid  assessment 
could  have  been  levied,  a  valid  assessment  authorized  by  a  stat- 
ute enacted  after  the  conveyance  is  not  a  breach  of  the  coven- 
ant, because  when  the  deed  was  given  there  was  no  liability  to 
assessment  and  consequently  no  encumbrance.25 

When  the  parties  knew  of  the  improvement  at  the  time  of 

"Blackie  v.  Hudson,  117  Mass.  181  (1875)  ;  Carr  v.  Dooley,  119  Mass.  294 
(1876)  ;  O'Connell  v.  First  Parish  in  Maiden,  204  Mass.  118  (1910)  ;  Cotting  v. 
Commonwealth,  205  Mass.  523  (1910). 

20  Maloy  v.  Holl,  190  Mass.  277  (1906). 

21  G.  L.  c.  80,  §  12,  supra,  page  699. 

22  G.  L.  c.  83,  §  27,  supra,  page  724. 

23Colburn  v.  Litchfield,  132  Mass.  449  (1882);  Smith  v.  Abington  Savings 
Bank,  171  Mass.  178,  186  (1898)  ;  Maloy  v.  Holl,  190  Mass.  277,  279   (1906). 

"Lorden  v.  Coffey,  178  Mass.  489   (1901). 

25  Maloy  v.  Holl,  190  Mass.  277  (1906);  Morse  v.  Street  Commissioners  of 
Boston,  197  Mass.  292  (1907)  ;  Campbell  v.  Haven,  211  Mass.  121  (1912)  ;  Sul- 
livan v.  Mandell,  212  Mass.  174  (1912). 


General  Provisions  Relative  to  Real  Property  747 

G.  L.  c.  184,  §22] 

the  conveyance  and  the  vendor  specifically  agreed  to  pay  for  it, 
he  cannot  require  the  purchaser  to  contest  the  validity  or  even 
the  constitutionality  of  the  assessment.26  If  the  assessment  is 
not  a  lien,  but  only  a  condition  precedent  to  making  use  of  the 
improvement  it  is  not  an  encumbrance.27  The  purchaser  may  re- 
cover on  the  covenant  if  the  lien  can  be  enforced  against  him 
even  if  it  could  not  have  been  enforced  against  the  vendor;28  but 
if  the  covenant  related  to  only  a  portion  of  the  property  assessed 
the  vendor  is  liable  for  a  proportionate  part  of  the  assessment 
only.29  The  duration  of  the  lien  depends  upon  the  provisions  of 
the  statutes  under  which  the  assessment  was  made,  and  unless 
it  has  expired  in  accordance  with  such  provisions,  the  vendor 
is  liable  upon  his  covenant.30 

MMcCormick  v.  Cheevers,  124  Mass.  262   (1878). 

"Such  as  an  entrance  fee  for  the  use  of  a  sewer,   Bumstead  v.  Cook,   169 
Mass.  410   (1897). 

28  As  where  the  vendor  was  the  commonwealth,  Cotting  v.  Commonwealth, 
205  Mass.  523  (1910). 

29  Smith  v.  Carney,  127  Mass.  179  (1879). 

^O'Connell  v.  First  Parish  in  Maiden,  204  Mass.  118  (1910). 


CHAPTER     185 

THE  LAND  COURT 

Jurisdiction  over  Foreclosure  of  Tax  Titles 

Section  1.  The  land  court  shall  be  a  court  of  record.     It  shall 
have  exclusive  original  jurisdiction  of  the  following  matters : 


(b)  Proceedings  to  foreclose  tax  titles,  under  chapter  sixty. 


CHAPTER     193 

APPOINTMENT  OF  ADMINISTRATORS 

Application  by  Commissioner  of  Corporations  and  Taxation 

Section  3.  If  a  person  dies  leaving  an  estate  which  may  be  liable 
to  an  income  tax  under  chapter  sixty-two  or  a  legacy  or  succession 


748  Taxation  in  Massachusetts 

[G.L.c.  198,  §  1 

tax  under  chapter  sixty-five,  and  a  will  disposing  of  such  estate  is  not 

offered  for  probate,  or  an  application  for  administration  made,  within 

four  months  after  his  decease,  the  probate  court,  upon  application 

by  the  commissioner  of  corporations  and  taxation,  may  appoint  an 

administrator. 

This  section  appeared  in  much  its  present  form  in  the  orig- 
inal inheritance  tax  act  of  189 1.1  The  object  of  the  statute  is  of 
course  to  prevent  the  evasion  of  the  tax  by  the  division  of  the 
estate  of  a  deceased  person  by  agreement  of  all  concerned  with- 
out the  intervention  of  the  probate  court,  a  practice  which  was 
not  at  all  uncommon  before  the  enactment  of  the  statute,  es- 
pecially in  the  rural  districts.  In  1907  the  words  "if  it  then 
appears  that  there  is  no  will  in  existence"  were  added  in  the 
appropriate  section  of  the  direct  inheritance  tax  act  of  that 
year,  but  these  words  were  struck  out  in  1911,  so  that  an  ad- 
ministrator is  appointed  on  application  of  the  commissioner  if 
the  executor  named  in  the  will  does  not  offer  it  for  probate.2 
In  1915  the  statute  was  amended  so  as  to  operate  when  in  the 
opinion  of  the  commissioner  a  tax  was  due,3  and  in  1919  it  was 
extended  so  as  to  include  the  income  tax  as  well  as  the  inheri- 
tance tax.4 

1  St.  1891,  c.  425,  §13. 

2  St.  1911,  c.  551. 

3  St.  1915,  c.  64. 

*St.  1919,  c.  349,  §6. 


CHAPTER     198 

INSOLVENT  ESTATES  OF  DECEASED  PERSONS 

Taxes  a  Preferred  Claim 

Section  1.  If  the  estate  of  a  person  deceased  is  insufficient  to  pay 
all  his  debts,  it  shall,  after  discharging  the  necessary  expenses  of  his 
funeral  and  last  sickness  and  the  charges  of  administration,  be  applied 
to  the  payment  of  his  debts,  which  shall  include  equitable  liabilities, 
in  the  following  order: 

First,  Debts  entitled  to  a  preference  under  the  laws  of  the  United 
States. 

Second,  Public  rates,  taxes  and  excise  duties. 


Accounts  and  Settlements  op  Receivers  749 

G.L.c.  206,  c.  216] 

CHAPTER     206 

ACCOUNTS  AND  SETTLEMENTS  OF  RECEIVERS 

Taxes  a  Preferred  Claim 

Section  31.  The  following  claims  shall,  in  the  settlement  of 
estates  by  receivers,  be  entitled  to  priority  in  the  order  named : 

First,  Debts  due  the  United  States  or  debts  due,  or  taxes  assessed 
by,  the  commonwealth  or  a  county,  city  or  town  therein. 


The  state  insolvency  laws  are  suspended  while  the  national 
bankruptcy  act  is  in  force.  The  state  statutes  as  to  the  settle- 
ment of  estates  by  receivers  are  however  still  in  force  and  under 
these  statutes  taxes  constitute  a  preferred  claim.1  It  has  been 
held  that,  even  in  the  absence  of  statute,  when  an  estate  is  in 
the  hands  of  a  receiver  appointed  by  a  court  of  equity,  taxes 
should  receive  priority.2 

1  Waite  v.  Worcester  Brewing  Co.,  176  Mass.  283  (1900);  Equitable  Trust 
Co.  v.  Kelsey,  209  Mass.  416  (1911). 

2  Jones  v.  Arena  Publishing  Co.,  171  Mass.  22   (1898). 


CHAPTER     216 
COURTS  OF  INSOLVENCY 

Preferred  Claims 

Section  118.  In  the  order  for  a  dividend  under  the  preceding 
section,  the  following  claims  shall  be  first  paid  in  full  in  the  follow- 
ing order : 

First,  The  twenty-five  dollars  or  expense  of  publication  as  pro- 
vided in  section  one  hundred  and  seventy  paid  by  a  creditor  and  the 
legal  fees,  paid  by  him,  of  an  officer  for  the  service  of  the  order  of 
notice  to  the  debtor  upon  the  original  petition  and  for  the  service  of  a 
writ  of  injunction  issued  to  restrain  the  transfer  or  disposition  of  any 
part  of  the  debtor's  property,  not  exempt  from  attachment,  and  from 
any  interference  therewith. 

Second,  The  legal  fees  of  the  messenger. 


750  Taxation  in  Massachusetts 

[G.L.c.  217,  §  16 
Third,  Debts  due  to  the  United  States,  and  debts  due  to  and  taxes 
assessed  by  the  commonwealth,  or  a  county,  city  or  town  therein. 


Under  all  systems  of  government,  taxes  have  constituted  a 
preferred  claim.1  Although  the  insolvency  laws  are  suspended 
while  the  national  bankruptcy  act  remains  in  force,  under  that 
enactment  also  taxes  due  a  state  or  a  county,  city  or  town 
therein  constitute  a  preferred  claim.2 

1  Murray  v.  Hoboken  Land,  etc.  Co.,  18  How.  272   (1855). 

2  G.  L.  c.  60,  §  36,  supra,  page  344.  See  also  as  to  insolvent  estates  of 
deceased  persons,  G.  L.  c.  198,  §  1,  supra,  page  748  and  as  to  settlements  of 
estates  by  receivers,  G.  L.  c.  206,  §  31,  supra,  page  749. 


CHAPTER     217 

JUDGES  AND   REGISTERS   OF  PROBATE  AND 

INSOLVENCY 

Register  to  Send  Copies  of  Inventories  to  Commissoner 

Section  16.  The  register  shall,  except  as  herein  provided,  send 
by  mail  to  the  commissioner  of  corporations  and  taxation  a  copy  of 
every  inventory  and  appraisal  filed  in  his  court  by  an  executor, 
administrator  or  trustee,  within  thirty  days  after  the  filing  of  the 
same.  The  register  shall  also,  within  the  same  period,  send  by  mail 
to  said  commissioner  a  copy  of  the  will  of  the  decedent,  if  such  has 
been  allowed  by  the  probate  court.  The  register  shall  also  furnish 
such  copies  of  papers  in  his  office  as  the  commissioner  shall  require, 
and  shall  furnish  information  as  to  the  records  and  files  in  his  office 
in  such  form  as  the  commissioner  may  require.  A  refusal  or  neglect 
by  the  register  so  to  send  a  copy  of  such  inventory  and  appraisal  or 
to  furnish  such  copies  or  information  shall  be  a  breach  of  his  official 
bond;  but  the  commissioner  may  excuse  him  from  sending  copies  of 
inventories  and  of  wills  of  estates  no  part  of  which,  in  his  judgment, 
appears  to  be  subject  to  a  tax  under  chapter  sixty-five.  If  an  execu- 
tor, administrator  or  trustee  fails  to  file  said  inventory  and  appraisal 
within  three  months  from  the  date  of  his  appointment,  the  register 
shall  within  thirty  days  after  the  expiration  thereof  notify  the  com- 
missioner of  such  failure. 


Improvement  op  Low  Land  and  Swampg  751 

G.  L.  c.  252,  §  13] 

This  statute,  which  was  originally  enacted  as  section  ten  of 
the  inheritance  tax  act  of  1891,  at  first  merely  required  the  reg- 
ister of  probate  to  send  to  the  state  treasurer  a  copy  of  the  in- 
ventory of  any  estate,  part  of  which  was  subject  to  the  tax.  In 
1907  the  obligation  was  made  much  broader,  and  since  that 
date  the  only  changes  have  been  the  addition  of  the  final  clause 
in  1908,  authorizing  the  tax  commissioner  to  excuse  the  register 
in  certain  cases,  and  an  amendment  in  1909  providing  that  a 
copy  should  be  sent  in  every  case  instead  of  the  original  or  a 
copy,  as  formerly. 


CHAPTER    252 

IMPROVEMENT  OF  LOW  LAND  AND  SWAMPS 

Assessment  of  Cost  of  Draining  Low  Land 

Section  13.  The  commissioners  shall,  after  due  notice  and  a 
hearing,  determine  what  proportion  of  the  total  expense  of  the  im- 
provement, of  the  cost  of  maintenance  of  drains  and  ditches  and  of 
the  payment  for  works  or  structures  taken  or  otherwise  acquired  in 
connection  therewith,  except  such  as  is  to  be  paid  by  the  common- 
wealth, shall  be  paid  by  each  town  where  any  of  the  land  improved 
lies,  and  shall  return  their  award  to  the  board,  which  shall,  upon 
acceptance  thereof,  send  a  copy  thereof  to  each  such  town.  Any  such 
town  aggrieved  by  such  award  may,  by  petition  joining  all  the  other 
such  towns  as  party  respondents,  appeal  to  the  superior  court  for  the 
county  where  the  greater  part  of  the  land  improved  lies;  provided, 
that  such  petition  is  entered  not  later  than  the  next  return  day  after 
the  expiration  of  thirty  days  from  its  receipt  of  said  copy.  Questions 
of  fact  shall,  upon  motion  of  either  party,  be  tried  by  jury  in  such 
manner  as  the  court  orders.  The  court  may  affirm,  reverse  or  alter 
the  award,  and  the  decision  of  the  court  shall  take  effect  as  an  original 
award.  The  board  shall  forthwith  send  to  the  county  commissioners 
of  the  county  where  the  greater  part  of  the  land  lies  a  copy  of  the 
award  as  finally  determined.  The  sum  so  ascertained  to  be  due  from 
any  such  town  shall  be  paid  by  the  treasurer  thereof  to  said  county 


752  Taxation  in  Massachusetts 

[G.  L.  c.  252,  §  14 
in  not  exceeding  twenty  equal  annual  instalments  to  be  collected  in 
the  same  manner  as  taxes. 

Section  14.  The  assessors  of  each  such  town  shall  divide  the  sum 
ascertained  to  be  due  from  their  town  under  the  preceding  section, 
among  the  various  parcels  of  land  therein  which  are  within  the  drain- 
age district  and  are  benefited  by  the  improvement  in  proportion  to  the 
special  benefit  received  by  each  such  parcel  therefrom  and  shall  assess 
the  same  in  the  same  manner  as  betterments  are  assessed  under 
chapter  eighty.  The  provisions  of  said  chapter  relative  to  the  appor- 
tionment, division,  reassessment,  abatement  and  collection  of  assess- 
ments for  betterments,  and  to  interest,  shall  apply  to  assessments  made 
under  this  section,  except  that  such  assessments  shall  be  apportioned 
in  twenty  equal  annual  instalments  or  in  such  lesser  number  as  the 
assessors  may  determine. 

The  statutes  making  provision  for  the  improvement  of  low 
land  are  of  ancient  origin,  but  have  received  considerable  modi- 
fication in  recent  years.  They  apply  in  cases  when  it  is  neces- 
sary or  useful  to  drain  or  flow  a  tract  of  low  land  held  by  several 
proprietors,  and  they  provide  for  the  establishment  of  a  dis- 
trict to  be  drained  and  the  appointment  of  district  drainage 
commissioners  by  the  state  drainage  board  with  authority  to 
carry  out  a  scheme  of  drainage,  primarily  at  the  expense  of  the 
county,  although  the  cost  is  ultimately  to  be  assessed  upon  the 
owners  of  land  within  the  district. 

The  assessment  of  the  cost  is  not  however  an  exercise  of 
the  power  of  taxation,  but  a  proceeding  of  a  semi-judicial  nature 
authorized  as  an  exercise  of  the  police  power,  for  the  adjust- 
ment of  the  individual  rights  of  owners  in  respect  to  a  piece 
of  property  in  which  all  have  a  common  interest,1  and  conse- 
quently the  assessment  can  be  constitutionally  levied  although 
the  money  is  not  expended  for  the  public  use.2 

Under  the  statutes  formerly  in  force,  the  collection  of  the 
amount  assessed  upon  land  within  the  district  was  carried  out 
by  an  officer  appointed  expressly  for  the  purpose.  It  was  held 
that  such  collector,  if  he  received  a  warrant  from  the  commis- 

1  Lowell  v.  Boston,  111  Mass.  454,  468  (1873);  Turner  v.  Nye,  154  Mass. 
579,  583  (1891)  ;  Head  v.  Amoskeag  Mfg.  Co.,  113  U.  S.  9,  22  (1885) .  When  the 
drainage  affects  a  sufficiently  large  area,  it  is  for  the  public  use,  and  the  powers 
of  eminent  domain  and  taxation  may  be  employed  in  its  behalf.  Talbot  v.  Hudson, 
16  Gray  417  (1860). 

2  Supra,  Part  I,  §71. 


Improvement  op  Low  Land  and  Swamps  753 

G.  L.  c.  252,  §§  14,  19] 

sioners  that  was  valid  on  its  face,  was  protected  from  any  action 
against  him  for  enforcing  payment  of  the  tax  even  if  there  were 
irregularities  in  the  proceedings  of  the  commissioners;3  but 
that  unless  the  collector  was  lawfully  appointed,  his  proceedings 
were  void.4 

Roads  to  Swamps  and  Quarries 

Section  19.  The  commissioners  shall  assess  the  amount  awarded 
as  damages  upon  the  persons  for  whose  use  the  improvements  are  to  be 
made,  in  proportion  to  the  benefit  to  be  received  by  each;  but  no 
person  shall  be  assessed  an  amount  greater  than  the  benefit  to  be  re- 
ceived by  him.  The  provisions  of  chapter  eighty  relative  to  the 
abatement  and  collection  of  betterments  shall  apply  to  assessments 
made  under  this  section. 

Sections  fifteen  to  twenty-three,  inclusive,  of  chapter  two 
hundred  fifty-two  provide  for  the  construction  of  roads  or  drains 
to  low  lands,  ponds,  swamps,  quarries,  mines  or  mineral  deposits 
which  cannot  be  approached  or  used  to  advantage  without  cross- 
ing the  lands  of  other  owners.  The  statutes  on  which  they  were 
based  were  in  force  for  many  years,1  but  they  were  of  doubt- 
ful constitutionality,  because  they  authorized  an  exercise  of 
eminent  domain  for  a  use  not  public.  The  commissioners  who 
prepared  the  General  Laws  recommended  their  repeal,  on  the 
ground  that  they  were  obsolete  as  well  as  unconstitutional;2 
the  legislature  however  continued  them  in  force,  but  limited 
their  application  to  cases  in  which  the  improvement  was  required 
by  public  convenience  and  necessity  so  that  the  constitutional 
difficulty  was  removed. 


*  Upton  v.  Holdcn,  5  Met.  360  (1842). 
4  Wright  v.  Leonard,  4  Gray  150  (1855), 


1  These  statutes  were  before  the  court  in  Sherman  v.  Tobey,  3  Allen  7  (1871), 
and  Eldridge  v.  Norfolk  County  Commissioners,  185  Mass.  186  (1904),  without 
any  question  as  to  their  constitutionality  being  raised. 

2  See  Preliminary  Report  of  Commissioners,  p.  55. 


APPENDIX 

Additional  Statutes  Affecting  Taxation 

In  addition  to  the  statutes  relating  to  taxation  set  forth  in  the 
preceding  pages,  the  following  statutes  bear  indirectly  upon  the 
general  subject  of  taxation  or  upon  the  application  of  the  tax 
laws: 

G.  L.  c.    40,  sees.  5-13  inc. — Purposes  for  which  towns  may  appro- 
priate money, 
sec.  14  — Land  not  to  be  purchased  for  municipal 

purpose  for  more  than  25%  in  excess 
of  its  assessed  valuation. 
C.    43,  sec.  30  — Same,  under  optional  city  charters. 

sees.  60-61      — Appointment  and  removal  of  assessors 

under  Plan  B. 
sec.  67  — Commissioner  of  finance  under  Plan  C. 

c.     44,  sees.  2-13  inc. — Regulation  of  municipal  indebtedness. 

sees.  32-34  inc. — Budget  in  cities. 
c.     45,  sec.  6  — Park  betterments  to  be  applied  to  pay- 

ment of  park  loans. 
c.     67,  sees.  18,  30,  35 — Assessments  for  religious  purposes. 
c.     79,  sec.  35  — Assessed   value    admissible   in    eminent 

domain  proceedings. 
c.    84,  sees.  12, 13, 14 — Assessments  for  repair  of  private  ways 

and  bridges. 
c.    90,  sec.  33  — Fees  for  motor  vehicle  licenses. 

sec.  42  — Fees  for  aircraft  licenses. 

c.     91,  sec.  21  — Compensation  for  tide  water  displaced. 

c.     92,  sees.  5-7  inc.  — Apportionment  on  towns  of  expenses  of 

metropolitan  sewers, 
sec.  26  — Apportionment  on  towns  of  expenses  of 

metropolitan  water  supply. 
c.    92,  sees.  54-59  inc. — Apportionment    on    towns    of    metro- 
politan parks, 
sec.  97  — Apportionments  to  remain  in  force. 

755 


756  Taxation  in  Massachusetts 


c. 

103,  sees. 

4,  5 

('. 

Ill,  sec. 

83 

c. 

128,  sec. 

24 

c. 

140,  sees, 

.  137-150 
inc. 

c. 

148,  sec. 

29 

c. 

161,  sec. 

150 

e. 

185,  sec. 

109 

— Pilotage  fees. 

— Apportionment    on    towns    of    cost    of 
county  tuberculosis  hospitals. 
-Recovery  of  cost  of  treating  plants  in- 
fected with  disease. 


-Dog  licenses. 

-Apportionment  on  towns  of  expenses  of 

metropolitan  fire  prevention  district. 

—Apportionment  on  towns  of  expenses  of 

transportation  area. 
—Assessors'   valuation   admissible   in   ac- 
tion to  recover  damages  by  registra- 
tion of  land, 
c.  188,  sec.       1  — Homestead   not   exempt   from   sale   for 

taxes. 
c.  207,  sec.       3  — License  to  foreign  executor  to  receive 

and  dispose  of  personal  property 
c.  231,  sec.  145  — Enumeration  of  sections  of  chapter  on 

pleading   and    practice    which    apply 
to  petitions  for  abatement  of  better- 
ment assessments. 
c.  237,  sec.       3  — Taxes  paid  by  occupant  deductible  from 

rents  and  profits  when  ousted  by  writ 
of  entry. 


Additional  Taxes  Imposed  for  Temporary  Purposes 

In  addition  to  the  taxes  imposed  under  the  provisions  of  the 
General  Laws,  there  have  been  in  recent  years  special  additional 
taxes  imposed  by  statutes  of  a  temporary  character  and  which 
are  not  included  in  the  General  Laws,  enacted  to  meet  the  con- 
ditions which  arose  as  a  result  of  the  World  War. 

The  state,  as  well  as  private  citizens,  was  faced  with  an 
increased  cost  of  supplies  and  materials  and  in  addition  was 
obliged  to  engage  in  new  activities  as  a  result  of  war  conditions, 
and  although  the  state  tax  was  increased  from  eight  million  dol- 
lars in  1916  to  eleven  million  dollars  in  1917  and  to  fourteen 
million  dollars  in  1920,  this  increase  proved  inadequate  to  meet 


Appendix  757 

the  necessities  of  the  state  and  additional  temporary  excise  taxes 
were  imposed  to  make  up  the  deficiency. 

In  1918  a  statute  was  enacted  imposing  an  additional  tax, 
for  one  year  only,  of  one  per  cent  of  the  net  income  of  every 
domestic  corporation  doing  business  for  profit,  upon  which  in- 
come such  corporation  was  required  to  pay  a  tax  to  the  United 
States,  the  income  to  be  determined  by  the  filing  by  each  cor- 
poration of  a  copy  of  its  last  preceding  tax  return  to  the  United 
States  collector  of  internal  revenue.1  Provision  was  made  for  ap- 
portioning the  income  in  the  case  of  corporations  doing  business 
outside  the  state.  A  similar  tax  was  imposed  on  foreign  cor- 
porations doing  business  within  the  commonwealth.2  Under 
these  statutes  it  was  held  that,  inasmuch  as  a  corporation  in 
computing  its  net  income  for  the  federal  tax  might  deduct  the 
sum  paid  by  it  as  excess  profits  tax,  it  was  entitled  to  a  like 
deduction  in  computing  its  income  for  the  tax  imposed  by  the 
state;3  that  a  railroad  corporation  which  with  legislative  sanc- 
tion had  leased  its  entire  property  to  another  company  was  not 
"doing  business  for  profit"  within  the  meaning  of  the  statute 
and  so  was  not  subject  to  the  tax.4  and  that  a  corporation  which 
collected  milk  in  other  states,  brought  it  to  this  state,  pasteur- 
ized it  and  placed  it  in  other  receptacles  and  distributed  it  to 
customers  within  the  state  was  taxable  upon  the  income  thus 
derived.5 

The  provisions  of  the  foregoing  acts  were  revived  and  re- 
enacted  in  1919  for  another  year,  so  far  as  they  applied  to  domes- 
tic and  foreign  business  corporations,  trust  companies,  public 
service  companies  and  insurance  companies.6  In  1919  however 
the  tax  was  levied  solely  for  the  purpose  of  raising  funds  to  pay 
the  so-called  "war  bonus"  to  men  from  Massachusetts  who 
served  in  the  World  War.  It  was  held  that  although  an  income 
tax  on  individuals  was  a  property  tax,  and  must  be  either  pro- 
portional, or  comply  with  the  limitations  of  the  Forty-fourth 
Amendment,  an  income  tax  on  corporations  might  well  be  an 

1  St.  1918,  c.  255. 

2  St.  1918,  c.  253. 

3  American  Printing  Co.  v.  Commonwealth,  231  Mass.  237   (1918). 

*  Attorney  General  v.  Boston  &  Albany  R.  R.  Co.,  233  Mass.   460    (1919); 
Attorney  General  v.  Ware  River  R.  R.  Co.,  233  Mass.  466   (1919). 
5H.  P.  Hood  &  Sons  v.  Commonwealth,  235  Mass.  572  (1920). 
•St.  1919,  c.  342,  §§1,  2,3. 


758  Taxation  in  Massachusetts 

excise  graded  in  accordance  with  income,  and  need  not  comply 
with  the  Forty-fourth  Amendment,  and  on  this  ground  the 
statute  imposing  the  tax  was  sustained.7 

In  1920  an  additional  income  tax  was  again  imposed  upon 
corporations,  but  in  1920,  as  in  1918,  the  tax  was  levied  to  raise 
funds  for  the  general  purposes  of  the  commonwealth.8  The 
1918  statutes  were  revived,  except  that  the  tax  was  imposed  upon 
the  same  classes  of  corporations  as  were  taxed  in  1919,  and  it 
was  expressly  provided  that  there  should  be  no  credit  for  excess 
profits  or  other  federal  taxes.  The  rate  of  taxation  was  origin- 
ally fixed  at  one  half  of  one  per  cent,  but  before  the  law  went 
into  effect  it  was  increased  to  three  quarters  of  one  per  cent.9 
In  1921  again  a  similar  tax  was  levied  for  the  general  purposes 
of  the  commonwealth,  at  the  rate  of  three  quarters  of  one  per 
cent.10 

Temporary  additional  taxes  have  also  been  levied  upon  the 
income  of  individuals.  In  1918  an  additional  tax  of  ten  per 
cent  of  the  amount  of  all  taxes  imposed  by  the  income  tax  act 
of  1916  was  imposed  for  one  year,  the  proceeds  to  be  retained 
for  the  general  purposes  of  the  commonwealth.11  In  1919  pro- 
vision was  made12  for  the  levy  of  an  additional  tax  of  one  per 
cent  on  the  incomes  of  professions,  employments,  trade  or  busi- 
ness taxable  under  the  income  tax  act.13  The  entire  proceeds  of 
this  tax  were  to  be  distributed  to  the  cities  and  towns  of  the 
state  in  proportion  to  their  respective  shares  in  the  burden  of 
the  state  tax.  This  tax  was  to  be  assessed  for  the  years  1919 
and  1920  with  respect  to  the  income  of  1918  and  1919.  Although 
the  amount  expected  to  be  raised  by  this  act  was  approximately 
equivalent  to  the  proportion  of  the  income  tax  diverted  for 
educational  purposes  under  the  so-called  school  fund  act,  it  was 
held  that  the  two  acts  taken  together  did  not  constitute  the 
levy  of  a  tax  on  a  particular  subject  for  a  particular  purpose 
and  were  not  objectionable  as  imposing  a  special  assessment 
without  regard  to  benefit.14    It  was  also  held  that  the  tax  thus 

7  Eaton,  Crane  &  Pike  Co.  v.  Commonwealth,  237  Mass.  523   ( 1921 ) . 

8  St.  1920,  c.  550. 
"St.  1921,  c.  600. 
"  St.  1921,  c.  493. 
"  St.  1918,  c.  252. 
>:  St.  1919,  c   324. 

14 G.  L.  c.  62,  §5  (b). 
14  Knights  v.  Treasurer  &  Receiver  General,  237  Mass.  493  (1921). 


Appendix  759 

imposed  on  the  income  from  a  profession  was  not  in  violation 
of  the  Forty-fourth  Amendment  as  taxing  income  not  derived 
from  property  at  a  higher  rate  than  income  derived  from  prop- 
erty, although  the  entire  tax  on  income  from  a  profession  was 
higher  than  that  imposed  upon  income  from  an  annuity.15  This 
tax  was  not  revived  in  1921. 

Income  from  the  classes  of  intangible  property  subject  to 
taxation  under  the  income  tax  act  were  also  subjected  to  a 
temporary  additional  tax  in  1919. 1G  This  tax  was  at  the  rate 
of  one  half  of  one  per  cent,  was  to  be  imposed  in  the  years  1919, 
1920,  1921  and  1922  with  respect  to  the  income  in  the  preceding 
years,  and  the  entire  proceeds  were  to  be  used  in  meeting  the 
payments  for  the  "war  bonus." 

In  1918  an  additional  inheritance  tax  amounting  to  25% 
of  the  tax  imposed  by  existing  laws  was  levied  with  respect  to 
the  estates  of  persons  dying  between  May  3,  1918  and  May  3, 
1919. 17  The  proceeds  of  this  tax  were  retained  for  the  general 
purposes  of  the  commonwealth.  This  statute  was  revived  in 
the  following  year  and  made  applicable  to  the  estates  of  per- 
sons dying  between  May  3,  1919  and  July  22,  1920,  the  pro- 
ceeds to  be  used  in  meeting  the  payments  for  the  "war  bonus."18 
The  statute  was  again  re-enacted  and  revived  in  1920  and  made 
applicable  to  the  estates  of  persons  dying  between  July  22,  1920 
and  December  1,  1920,  the  proceeds  to  be  retained  for  the  general 
purposes  of  the  commonwealth.19  This  additional  inheritance 
tax  has  not  since  been  revived. 

The  "war  bonus  act"  was  enacted  in  1919,  and  provided  for 
the  payment  of  one  hundred  dollars  to  every  resident  of  Massa- 
chusetts who  served  in  the  army  or  navy  of  the  United  States 
in  the  World  War.20  The  constitutionality  of  a  statute  levying 
taxes  for  such  a  purpose  had  been  sustained  in  connection  with 
the  payment  of  gratuities  to  veterans  of  the  Civil  War;21  and 
every  effort  was  made  to  distribute  the  burden  proportionately 
upon  all  subjects  of  taxation.  In  addition  to  the  special  taxes 
on  the  incomes  of  corporations  and  of  individuals,  and  on  inheri- 

15  Rayner  v.  Tax  Commissioner,  . . .  Mass.  . . .   ( 1921 ) . 

»  St.  1919,  c.  342,  §3. 

17  St.  1918,  c.  191. 

"St.  1919,  c.  342,  §4. 

19  St.  1920,  c.  441. 

29  St.  1919,  c.  283. 

"Opinion  of  the  Justices,  211  Mass.  608  (1912). 


760  Taxation  in  Massachusetts 

tances,  already  referred  to,  an  additional  poll  tax  of  three  dol- 
lars was  levied  for  the  years  1920,  1921,  1922  and  1923,22  and 
it  was  further  provided  that  an  additional  state  tax  should  be 
levied  in  the  years  1919,  1920,  1921  and  1922  of  six  hundred 
and  sixty  thousand  dollars  in  each  year.23  It  was  expressly  pro- 
vided in  the  war  bonus  act  that  in  consideration  of  the  relative 
amounts  assessed  upon  corporations  and  property  by  the  act, 
no  additional  taxes  for  the  purposes  of  the  act  would  be  assessed 
in  subsequent  years  without  placing  an  equivalent  burden  upon 
incomes  generally  and  other  property.2 


24 


FORMS 

LIST  OF  FORMS 

Form  No.     1 — Petition  to  Restrain  Unlawful  Exercise  of  Corporate 

Power.     (G.  L.  c.  40.  Sec.  53.) 
Form  No.     2 — Application  for  Repayment  of  Illegal  Corporation  or 

Inheritance  Tax.     (G.  L.  c.  58,  Sec.  27.) 
Form  No      3— Collector's  Warrant.     (G.  L.  c.  59,  Sec.  53.) 
Form  No.     4 — Collector's  Warrant.     (Form  now  in  use  in  the  City 

of  Boston.)     (G.  L.  c.  59,  Sec.  53.) 
Form  No.     5 — Petition  for  Abatement  of  Tax.     (G.  L.  c.  59,  Sec.  59.) 
Form  No.     6 — Complaint  for  Refusal  to  Abate  Tax.     (G.  L.  c.  59, 

Sees.  64  or  65.) 
Form  No.     7 — Certificate  of  Abatement.     (G.  L.  c.  59,  Sec.  70.) 
Form  No.     8— Collector's  Bond.     (G.  L.  c.  60,  Sec.  13.) 
Form  No.     9 — Declaration  in  Action  by  Collector  to  Recover  Tax. 

(G.  L.  c.  60,  Sec.  35.) 
Form  No.  10 — Offer  to  Surrender  upon  Illegal  Sale.     (G.  L.  c.  60, 

Sec.  45.) 
Form  No.  11 — Certificate  of  Redemption  by  Payment  to  Collector. 

(G.  L.  c.  60,  Sees.  62,  63.) 
Form  No.  12 — Bill  in  Equity  to  Redeem  from  Tax  Sale.     (G.  L.  c. 

60,  Sec.  76.) 

22  St.  1919,  c.  283,  §§10-15,  inc.  Those  who  served  in  the  war  were  ex- 
empt from  this  tax;  and  the  same  privilege  was  extended  to  veterans  of  the 
Spanish  War  and  the  Phillipine  Insurrection  by  St.  1920,  c.  608. 

23  St.  1919,  c.  342,  §5;  and  see  St.  1919,  c.  346;  St.  1920,  c.  557;  St.  1921, 
c.  399. 

24  St.  1919,  c.  342,  §8. 


Appendix  761 

Form  No.  13 — Bill  in  Equity  to  Remove  Cloud  on  Title  Consisting 
of  Invalid  Tax  Deed.     (Sec.  G.  L.  c.  60,  Sec.  76.) 

Form  No.  14 — Petition  for  Injunction  against  Foreign  Corporation. 
(G.  L.  c.  60,  Sec.  91.) 

Form  No.  15 — Declaration  in  Action  to  Recover  Back  Illegal  Tax. 

(See  G.  L.  c.  60,  Sec.  98.) 

Form  No.  16 — Complaint  against  Commissioner  of  Corporations  and 
Taxation  for  Refusal  to  Abate  Income  Tax.  (G.  L. 
c.  62,  Sec.  47.) 

Form  No.  17 — Petition  for  Abatement  of  Illegal  Excise  on  Corpora- 
tion.    (G.  L.  c.  63,  Sec.  77.) 

Form  No.  18 — Petition  to  Probate  Court  to  Determine  Liability  to 
Inheritance  Tax.     (G.  L.  c.  65,  Sec.  30.) 

Form  No.  19 — Order  Assessing  Betterment.     (G.  L.  c.  80,  Sec.  1.) 

Form  No.  20 — Petition  for  Writ  of  Certiorari  to  Quash  Betterment. 

(See  G.  L.  c.  80,  Sees.  5-10  inc.) 

Form  No.  21 — Answer  or  Return  to  Petition  for  Writ  of  Certiorari. 
(See  G.  L.  c.  80,  Sees.  5-10  inc.) 

Form  No.  22-^-Declaration  in  Action  to  Recover  Back  Void  or  Un- 
constitutional Betterment.  (G.  L.  c.  80,  Sees. 
5-10  inc.) 

Form  No.  23 — Petition  to  Superior  Court  for  Abatement  of  Better- 
ment.   (G.  L.  c.  80,  Sec.  7.) 


FORM  NO.  1. 

Petition  to  Restrain  Unlawful  Exercise  of  Corporate  Power 

under  G.  L.  c.  40,  Sec.  53. 

1.  The  petitioners  are  all  taxable  inhabitants  of  the  of  ; 
the  respondent                   is  treasurer  of  the                   of 

2.  (State  the  vote  or  the  proposed  action  complained  of.) 

3.  Such  action  is  in  violation  of  the  provisions  of  (or  in  excess 
of  the  legal  authority  of  said  city  or  town  or  said  officers)  ;  no  money 
can  be  legally  appropriated  by  said  city  (or  town)  for  such  purpose, 
and  the  respondent  has  no  legal  right  to  expend  the 
money  of  said  city  (or  town)  or  to  incur  obligations  purporting  to 
bind  said  city  (or  town)  in  such  a  manner. 

Wherefore  your  petitioners  pray 

1.    That  the  respondent  (city,  or  town,  or  officers)  be  temporarily 


762  Taxation  in  Massachusetts 

and  after  a  hearing  on  the  merits  permanently  enjoined  and  restrained 
from 

2.  That  the  respondent  (treasurer)  be  temporarily  and  after 
a  hearing  on  the  merits  permanently  enjoined  and  restrained  from 
expending  any  money  of  the  of  or  from  issuing 

obligations  purporting  to  bind  the  of  for  the  pay- 

ment of  the  expenses  of 


FORM  NO.  2. 

Application  for  Repayment  of  Illegal  Corporation  or  Inherit- 
ance Tax  under  G.  L.  c.  58,  Sec.  27. 
To  the  Commissioner  of  Corporations  and  Taxation 
of  the  Commonwealth  of  Massachusetts : 
Respectfully  represents  that  it  is  a  corporation  estab- 

lished under  the  laws  of  (or  that  he  is  executor,  administra- 

tor, trustee  under  the  will  of  (or  of  the  estate  of)  late 

of  in  the  county  of  and  ). 

That 


That  notwithstanding  these  facts,  the  Commissioner  of  Corpora- 
tions and  Taxation,  purporting  to  act  under  the  provisions  of  Chapter 
63  (65)  of  the  General  Laws  upon  assessed  upon  the  peti- 

tioner a  tax  of  $  and  has  proceeded  to  cause  payment  of  the 

same  to  be  enforced  and  the  petitioner  on  paid  the  same 

under  protest  (with  interest  amounting  to  $  ). 

Wherefore  the  petitioner  prays  that  (the  portion  of)  said  tax  thus 
wrongfully  and  illegally  exacted  be  abated,  and  that  the  amount 
thereof  (and  interest)  with  interest  thereon  from  the  date  of  payment 
be  repaid  to  it  (him). 

FORM  NO.  3 

Collector's  Warrant.     (G.  L.  c.  59,  Sec.  53.) 
(Prescribed  by  St.  1785,  Chap.  50,  sec.  6.     The  form  relates  to 
the  state  tax,  but  by  sec.  7  the  form  of  warrant  for  all  other  taxes 


Appendix  763 

"shall  also  be  made  out  by  the  Assessors  thereof  in  the  same  tenor, 
mutatis  mutandis.") 
'(Seal)  ss.: 

To  A.  B.,  Constable  or  Collectors  of  the  town  of  A,  within  the 
county  of  S, 

Greeting:  In  the  name  of  the  Commonwealth  of  Massachusetts 
you  are  required  to  levy  and  collect  of  the  several  persons  named  in 
the  list  herewith  committed  unto  you,  each  one,  his  respective  propor- 
tion therein  set  down,  of  the  sum  total  of  such  list,  it  being 
this  town's  proportion  of  a  tax  or  assessment  of  Pounds 

Shillings  and  Pence,  granted  and  agreed  upon  by  the  General 

Court  of  said  Commonwealth,  at  their  session  begun  and  held  at 
B  on  the  day  of  for  defraying  the  necessary 

charges  of  securing,  protecting  and  defending  the  same ;  and  you  are 
to  transmit  and  pay  in  the  same  unto  T.  S.,  Treasurer  and  Receiver 
General  of  this  Commonwealth,  or  to  his  successor  in  that  office,  and 
to  complete  and  make  up  an  account  of  your  collections  of  the  whole 
sum  on  or  before  the  day  of  ;  and  if  any  person  shall 

refuse  or  neglect  to  pay  the  sum  he  is  assessed  in  the  said 

list,  to  distrain  the  goods  or  chattels  of  such  person  to  the  value 
thereof;  and  the  distress  so  taken  to  keep  for  the  space  of  four  days 
at  the  cost  and  charge  of  the  owner;  and  if  he  shall  not  pay  the  sum 
so  assessed  within  the  said  four  days,  then  you  are  to  sell  at  public 
vendue  the  distress  so  taken  for  the  payment  thereof  with  charges; 
first  giving  forty-eight  hours  notice  of  such  sale  by  posting  up  ad- 
vertisements thereof  in  some  public  place  in  the  town,  district  or 
plantation  (as  the  case  may  be)  ;  and  the  overplus  arising  by  such  sale, 
if  any  there  be,  besides  the  sum  assessed,  and  the  necessary  charges 
of  taking  and  keeping  the  distress,  you  are  immediately  to  restore 
to  the  owner;  and  for  want  of  goods  and  chattels  whereon  to  make 
distress  (besides  tools  or  implements  necessary  for  his  trade  or  occu- 
pation, beasts  of  the  plough  necessary  for  the  cultivation  of  his  im- 
proved lands,  arms,  utensils  for  house-keeping  necessary  for  upholding 
life,  bedding  and  apparel  necessary  for  himself  and  family)  for  the 
space  of  twelve  days,  you  are  to  take  the  body  of  such  person,  so 
refusing  or  neglecting  and  him  commit  unto  the  common  gaol  of  the 
county,  there  to  remain  until  he  pay  the  same,  or  such  part  thereof 
as  shall  not  be  abated  by  the  Assessors  for  the  time  being,  or  the 
Court  of  General  Sessions  of  the  Peace,  for  the  said  county. 


764  Taxation  in  Massachusetts 

Given  under  our  hands  and  seals,  by  virtue  of  a  warrant  from  the 
treasurer  aforesaid,  this  day  of  178 

A.  B.,1 

\  Assessors. 
C.  D.J 

FORM  NO.  4 

Collector's  Warrant. 

(Form  Now  in  Use  in  the  City  op  Boston.) 

(G.  L.  c.  59,  Sec.  53) 
(Seal) 

Boston,  19     . 

To 

Collector  of  Taxes  of  the  City  of  Boston. 

Greeting:  In  the  name  of  the  Commonwealth  of  Massachusetts, 
you  are  required  to  levy  and  collect  of  the  several  persons  named  in 
the  Tax  List  herewith  committed  to  you,  each  one  his  respective 
proportion  as  therein  set  down  of  the  sum  total  of  such  list,  such  sum 
being  (  )  dollars,  which  has  been  assessed  upon  the 

polls  and  estates  of  the  inhabitants  of  the  city  aforesaid  in  accord- 
ance with  law ;  and  if  any  person  shall  refuse  or  neglect  to  pay  to 
you  the  sum  he  is  assessed  in  said  list,  you  are  required — to  distrain 
the  goods  and  chattels  of  such  person  to  the  value  thereof,  and  to 
keep  the  distress  so  taken,  for  the  space  of  four  days  at  the  least; 
and — to  sell  at  public  auction  within  seven  days  after  the  seizure, 
the  distress  so  taken,  for  the  payment  of  the  sum  so  assessed  and 
charges,  first  giving  forty-eight  hours'  notice,  at  least,  of  such  sale, 
by  posting  up  advertisements  thereof  in  some  public  place  in  said 
City  of  Boston;  and — to  return  to  the  owner  on  demand,  the  over- 
plus arising  from  such  sale,  if  any  be  besides  the  sum  so  assessed  and 
the  charges  of  keeping  and  taking  the  distress,  with  an  account  in 
writing  of  such  sale  and  charges;  and — (for  the  want  of  goods  and 
chattels  whereon  to  make  distress  besides  tools  or  implements  neces- 
sary for  his  trade  or  occupation,  beasts  of  the  plough  necessary  for 
the  cultivation  of  his  improved  lands,  military  arms,  utensils  for 
housekeeping  necessary  for  upholding  life,  and  bedding  and  apparel 
necessary  for  himself  and  family,  for  the  space  of  fourteen  days), 
to  take  the  body  of  such  person  so  refusing  or  neglecting,  and  him 


Appendix  765 

commit  to  the  public  jail  of  the  county,  there  to  remain  until  he  pay 
the  same,  or  such  part  thereof  as  shall  not  be  abated  by  the  assessors 
for  the  time  being,  or  by  the  board  of  street  commissioners  of  the 
said  City  of  Boston. 

Given  under  our  hands  this  day  of  ,  19     . 


Assessors  of  the  City  of  Boston. 

FORM  NO.  5 

Petition  fot  Abatement  op  Tax  under  G.  L.  c.  59,  Sec.  59. 
To  the  Board  of  Assessors  of  the  of         : 

Respectfully  represents  of  in  the 

county  of  that  the  assessors  of  the  of  assessed 

a  tax  upon  him  for  the  year  19     ,  in  the  sum  of  $  ;  that  on 

,19  ,  he  filed  with  said  assessors  a  true  list  of  his  (personal) 
estate  not  exempt  from  taxation  in  the  form  and  manner  prescribed 
by  law,  and  that  he  is  aggrieved  by  said  tax  in  that  he  was  taxed 
at  more  than  his  just  proportion  (or  that  his  property  was  assessed 
in  excess  of  its  fair  cash  value,  or  that  he  was  not  subject  to  taxation 
in  said  city  or  town  or  that  said  tax  was  illegal  and  void)  ;  that  a 
bill  for  said  tax  dated  ,  19     ,  was  sent  to  him  by  the  col- 

lector of  taxes  of  said  town. 

Wherefore  he  prays  that  said  tax  may  be  abated. 

FORM  NO.  6 

Complaint  for  Refusal  to  Abate  Tax  under  G.  L.  c.  59, 

Secs.  64  or  65. 

Respectfully  represents  your  petitioner  that  the  assessors  of  the 
city  (or  town)  of  assessed  a  tax  upon  him  for  the  year  19 

in  the  sum  of  $  ;  that  on  ,  19     ,  he  filed  with  said 

assessors  a  true  list  of  his  (personal)  estate  not  exempt  from  taxation 
in  the  form  and  manner  prescribed  by  law  and  that  he  was  aggrieved 
by  said  tax  in  that  he  was  taxed  at  more  than  his  just  proportion  and 
that  his  property  was  assessed  in  excess  of  its  fair  cash  value  (or  that 
he  was  not  subject  to  taxation  in  said  city  or  town,  or  that  said  tax 


766  Taxation  in  Massachusetts 

was  illegal  and  void)  ;  that  a  bill  for  said  tax  dated  ,  19 

was  sent  to  him  by  the  collector  of  taxes  of  said  town  and  , 

19       he  applied  to  said  assessors  for  the  abatement  of  said  tax ;  that 
,  19       said  assessors  notified  your  petitioner  of  their  deci- 
sion wherein  they  refusal  to  abate  said  tax  as  requested  by  your 
petitioner  (and  he  on  ,  19        paid  said  tax  after  protest  in 

writing). 

And  your  petitioner  represents  that  he  is  aggrieved  by  the  refusal 
of  said  assessors  to  abate  said  tax  and  therefore  he  appeals  from  said 
decision  of  said  assessors  to  this  honorable  court  (or  board)  and  prays 
that  said  tax  may  be  abated  (and  judgment  entered  against  the 
respondent  for  the  amount  of  such  abatement,  and  for  costs  and 
charges  and  interest  on  the  amount  of  the  abatement  from  the  date 
of  payment  of  said  tax). 

FORM  NO.  7 

Certificate  op  Abatement  under  G.  L.  c.  59,  Sec.  70 

,  Mass.,  .  19     . 

To  the  Collector  of  Taxes  of  the  of  : 

An  abatement  in  the  sum  of  $  has  been  made  from  the 

taxes  assessed  to  in  19        (in  Ward  ,  Precinct  ) 

on 

For  the  Board  of  Assessors  (County  Commissioners)  of  the 
of 

FORM  NO.  8 

Collector's  Bond  (G.  L.  c.  60,  Sec.  13) 

Know  All  Men  By  These  Presents  that  we  of 

county  of  Commonwealth  of  Massachusetts,  as  principal, 

and  of  said  as  sureties,  are  holden  and  stand 

firmly  bound  and  obliged  unto  the  said  of  in  the 

full  and  just  sum  of  dollars,   to  be  paid  unto  the  said 

to  which  payment  well  and  truly  to  be  made,  we  hereby 
jointly  and  severally  bind  ourselves,  our  heirs,  executors  and  adminis- 
trators, firmly  by  these  presents. 

The  Condition  of  this  obligation  is  such,  that,  whereas,  the  said 
has  been  chosen  collector  of  taxes  for  the  said 
of  for  the  current  year,  and  has  accepted  said  office,  and 


Appendix  767 

been  duly  sworn  to  the  faithful  discharge  of  the  duties  thereof — 
now,  if  the  said  shall,  as  collector  as  aforesaid,  faithfully- 

collect,  account  for,  and  pay  over  all  the  taxes  which  he  shall  be 
legally  required  to  collect,  and  also  faithfully  discharge  all  other  legal 
duties  of  said  office,  then  this  obligation  shall  be  void,  otherwise  to 
remain  in  full  force  and  virtue. 

In  Witness  Whereof,  we  hereunto  set  our  hands  and  seals  this 
day  of  A.  D.  19     . 

Signed  and  sealed  in  the  presence  of 

FORM  NO.  9 

Declaration  in  Action  by  Collector  to  Recover  Tax  under  G.  L. 

c.  60,  Sec.  35. 

The  plaintiff  says  that  he  is  collector  of  taxes  of  the 

of  (or  that  he  was  collector  of  taxes  of  the 

of  for  the  year  19     ),  that  a  tax  for  the  year  19      in  the 

sum  of  $  was  assessed  upon  the  defendant  by  the  assessors  of 

said  town  (or  city)  and  committed  by  said  assessors  to  the  plaintiff 
19  ;  that  the  plaintiff  notified  the  defendant  of  the 
amount  of  said  tax,  that  the  tax  remained  unpaid  for  three  months 
after  it  was  so  committed  to  the  plaintiff  and  is  still  unpaid ;  where- 
fore the  defendant  owes  the  plairtiff  the  amount  of  said  tax  (with 
interest  thereon  from  19     ). 

FORM  NO.  10 

Offer  to  Surrender  upon  Illegal  Sale  under  G.  L.  c.  60,  Sec.  45. 

,  Mass.,  19     . 

To  the  Collector  of  Taxes  of  the  of 

Whereas  by  deed  dated  ,  19     ,  collector  of  taxes  of 

the  of  sold  to  the  following  described 

premises  in  said 

for  non-payment  of  the  taxes  assessed  thereon  for  the  year  19  , 
for  the  sum  of  $  ,    which  was  duly  paid  by  said  purchaser  to 

said  collector  upon  said  date,  and  it  subsequently  appeared  that  by 
reason  of  an  error,  omission  or  informality  in  the  assessment  of  said 
tax  (or  in  said  sale)  said  purchaser  has  no  claim  upon  said  property 
sold  as  aforesaid. 


768  Taxation  in  Massachusetts 

I  the   said    purchaser   of   said    premises   hereby    offer 

to  surrender  and  discharge  my  said  deed  or  to  assign  and  transfer 
to  said  all  my  right,  title  and  interest  in  said  premises, 

as  you  shall  elect. 

The  reason  why  I  have  no  claim  upon  the  land  sold  as  aforesaid 
is  as  follows : 


The  evidence  upon  which  I  rely  is  as  follows : 


I  refer  to  the  following  public  records : 


Respectfully  yours, 


FORM  NO.  11 

Certificate  of  Redemption  by  Payment  to  Collector  under  G.  L. 

.    c.  60,  Secs.  62,  63. 

"Whereas  I,  collector  of  taxes  for  the  of 

county  of  and   Commonwealth   of   Massachusetts, 

for  the  year  19     ,  did  sell  and  convey  certain  real  estate  to  by 

deed  dated  ,  19     ,  and  recorded  in  the  registry  of  deeds, 

in  book  page  for  the  non-payment  of  a  tax  assessed 

thereon  to  in  the  year  19     ,  which  real  estate  is  described 

as  follows,  viz., 

And  Whereas  of  in  the  county  of  and 

state  of  was  assessed  April  1,  19     ,  as  owner  of  said  property, 

and  he  alleges  that  at  the  time  of  said  sale  and  deed  he  was  the  owner 
of  said  property  and  further  alleges  that  he  is  now  the  owner  of  said 


Appendix  769 

property,  and  as  owner  thereof  desires  to  redeem  the  same  from  the 
sale  in  pursuance  of  sections  62  and  63  of  chapter  60  of  the  General 
Laws. 

And  Whereas  the  said  has  this  day  paid  to  me  the 

following  sums  to  redeem  said  property  from  said  sale,  to  wit : 

Amount  for  which  it  was  sold $   

Interest  at  8  per  cent  from  date  of  sale .  .  

Examination  of  title   

Deed  of  release   

Recording 

Additional  sum  as  per  statute '.....  


$ 
Therefore,  I,  the  said  collector  of  taxes,  for  the  said  of 

hereby  certify  that  I  have  received  from  the  said 
the  said  sum  of  dollars  and  cents    (  )    for  the 

purpose  aforesaid. 

Dated  this  day  of  ,  A.  D.  19     . 


Collector  of  Taxes  for  the  of 

FORM  NO.  12 

Bill  in  Equity  to  Redeem  from  Tax  Sale  under  6.  L.  c.  60,  Sec.  76. 

1.  The  plaintiff  is  the  owner  in  fee  (or  the  holder  of  a  mortgage 
recorded  ,19     ,  in  the  registry  of  deeds  for  the  county  of 

,  or  is  interested  in  the  following  manner      •  )  of 

(upon)   the  following  described  premises  in  the  •  of 

namely  subject  to  the  tax  title  hereinafter  described. 

2.  19     ,  the  collector  of  taxes  of  said  of 
sold  to  the  defendant  the  aforesaid  premises  for  the  sum 

of  $  for  payment  of  taxes  assessed  thereon  for  the  year  19     , 

by  the  assessors  of  said  of  and  on  ,  19     , 

delivered  to  the  defendant  a  deed  thereof. 

(3.    The  plaintiff  ,  19     ,  tendered  to  the  defendant  the 

sum  of  $  ,  being  an  amount  sufficient  to  cover  the  original 

sum  paid  by  the  defendant  and  intervening  taxes,  costs  and  interest  at 
the  rate  of  eight  per  cent  per  annum  from  the  date  of  sale  to  the  date 
of  tender  and  demanded  of  the  defendant  a  deed  of  release  of  said 


770  Taxation  in  Massachusetts 

premises;  but  defendant  refused  and  still  refuses  to  deliver  to  the 
plaintiff  such  deed  of  release.) 

Wherefore  the  plaintiff  prays  that  an  accounting  be  had  between 
the  plaintiff  and  defendant  and  the  sum  payable  to  the  defendant 
for  the  redemption  of  the  premises  from  the  sale  for  pay- 

ment of  taxes  for  the  year  19     ,  by  deed  dated  ,19     ,  be 

ascertained ;  and  that  it  may  be  decreed  that  upon  the  plaintiff  paying 
to  the  defendant  the  sum  that  shall  so  be  ascertained  the  defendant 
execute  and  deliver  to  the  plaintiff  a  deed  releasing  to  the  plaintiff 
all  the  defendant's  right,  title  and  interest  in  the  aforesaid  premises 
which  defendant  acquired  by  or  under  the  aforesaid  deed ;  and  that 
such  further  relief  be  granted  as  law  and  justice  may  require. 

FORM  NO.  13 

Bill  in  Equity  to  Remove  Cloud  on  Title  Consisting  op  Invalid 
Tax  Deed  (See  G.  L.  c.  60,  Sec.  76). 

1.  The  plaintiff  is  the  owner  in  fee  of  certain  premises  in  the 

of  bounded  and  described  as  follows: 

2.  ,  19     ,  the  collector  of  taxes  of  said  of 
purported  to  sell  to  the  defendant  the  aforesaid  premises  for  pay- 
ment of  taxes  (purporting  to  be)  assessed  thereon  for  the  year  19 
and  on                     ,  19     ,  delivered  to  the  defendant  a  deed  thereof. 

3.  The  aforesaid  sale  and  deed  of  said  collector  were  wholly  void 
and  conveyed  no  title  to  the  defendant  for  the  following  reasons : 


4.  The  plaintiff  has  remained  and  is  now  in  possession  of  the 
aforesaid  premises,  but  the  defendant  has  refused  to  surrender  said 
deed  or  to  release  to  the  plaintiff  the  title  purporting  to  be  conveyed 
therein,  and  has  caused  said  deed  to  be  recorded  in  the  registry  of 
deeds  of  said  county  and  contended  that  he  had  obtained  a  title  under 
said  deed  as  security  for  the  repayment  of  the  purchase  price,  with 
all  intervening  costs,  terms  imposed  for  redemption  and  charges  with 
interest  thereon,  which  is  indefeasible  except  by  redemption  in  accord- 
ance with  law. 

5.  Said  deed  constitutes  a  cloud  upon  the  plaintiff's  title  to  said 
premises,  and  the  plaintiff  has  no  plain  and  adequate  remedy  at  law. 


Appendix  771 

Wherefore  the  plaintiff  prays: 

1.  That  the  deed  of  the  collector  of  taxes  of  the  of 

dated  ,  19     ,  purporting  to  convey  to  the  defendant 

the  premises        .  for  payment  of  taxes  for  the  year  19     ,  be 

declared  void. 

2.  That  the  defendant  execute  and  deliver  to  the  plaintiff  a  deed 
releasing  to  the  plaintiff  all  the  defendant's  right,  title  and  interest 
in  the  aforesaid  premises  which  defendant  acquired  by  or  under  the 
aforesaid  deed. 

3.  That  such  further  relief  be  granted  as  law  and  justice  may 
require. 

FORM  NO.  14 

Petition  for  Injunction  against  Foreign  Corporation  under  G.  L. 

c.  60,  Sec.  91. 

The  petitioner  says  he  is  the  collector  of  taxes  of  the  city  (or 
town)  of  and  that  the  defendant  is  a  foreign  corporation, 

organized  under  the  laws  of  the  state  of  and  doing  busi- 

ness in  in  the  Commonwealth  of  Massachusetts.     And  the 

petitioner  says  that  a  tax  of  $  was  duly  and  lawfully  assessed 

upon  the  defendant  by  the  assessors  of  said  as  the  tax  upon  its 

personal  estate  subject  to  taxation  in  said  for  the  year 

and  said  tax  was  upon  ,  19     ,  committed  to  the  petitioner  to 

collect.    And  upon  ,  19     ,  the  petitioner  made  a  demand 

upon  the  defendant  for  the  payment  of  said  tax,  but  the  defendant 
neglected,  refused  and  omitted  to  pay  said  tax  for  a  period  in  excess 
of  sixty  days  and  still  neglects,  refuses  and  omits  to  pay  it,  and  said 
tax  is  still  due  and  payable. 

Wherefore  the  petitioner  prays  that  the  defendant  be  enjoined 

and  restrained  from  doing  business  within  this  Commonwealth  until 

said  tax  (with  interest  thereon  at  the  rate       per  cent  per  annum  from 

,19     ) ,  and  all  incidental  costs  and  charges,  including  the 

costs  of  this  suit,  shall  have  been  paid. 

FORM  NO.  15 

Declaration  in  Action  to  Recover  Back  Illegal  Tax.    See  G.  L. 

c.  60,  Sec.  98. 

The  plaintiff  says  that  the  assessors  of  the  defendant  city  (or 
town)   assessed  a  tax  upon  him  for  the  year  19     ,   in  the  sum  of 


772  Taxation  in  Massachusetts 

$  ;  that  said  tax  was  wholly  illegal  and  void;  that  plaintiff 

paid  said  tax   (with  interest  thereon  amounting  to  $  )    on 

,  19  ,  after  a  protest  in  writing  signed  by  him  (or  arrest, 
levy,  notice  of  sale)  to  the  collector  of  taxes  of  the  defendant  city  (or 
town)  and  the  defendant  has  had  and  received  the  plaintiff's  money 
so  unlawfully  taken  from  him.  Wherefore  the  defendant  owes  the 
plaintiff  the  sum  of  $  with  interest  thereon  from  (date  of 

payment) . 


FORM  NO.  16 

Complaint  against  Commissioner  of  Corporations  and  Taxation 
for  Refusal  to  Abate  Income  Tax.     (G.  L.  C.  62,  Sec.  47.) 

1.  Respectfully  represents  of  in  the  county 
of                      and  Commonwealth  of  Massachusetts,  that  on 

an  assessment  was  levied  on  him  by  the  respondent  as  the  tax  (or  as 
an  additional  tax)  on  his  income  under  the  provisions  of  chapter  62 
of  the  General  Laws,  amounting  to  $ 

2.  Said  assessment  is  illegal  (or  of  said  assessment  a  part,  namely 
$  is  excessive,  disproportionate  and  illegal)  for  the  follow- 
ing reasons. 


3.    The  complainant  duly  filed  his  return  for  the  year 
as  required  by  law  and  on  he  filed  with  the  respondent  a 

petition  for  the  abatement  of  said  tax,  and  on  the  respondent 

notified  the  petitioner  that  he  refused  to  abate  said  tax  (or  that  he  had 
abated  said  tax  to  the  extent  of  $  ,  but  that  he  refused  to  make 

any  further  abatement). 

That  the  complainant  is  aggrieved  by  the  refusal  of  the  respond- 
ent to  abate  said  tax  as  prayed  for,  and  he  appeals  from  such 
refusal  to  this  Honorable  Court  and  prays  that  said  tax  may  be  abated 
in  the  amount  herein  set  forth  and  for  his  costs. 


Appendix  773 

FORM  NO.  17 

Petition  for  Abatement  of  Illegal  Excise  on  Corporation  under 

G.  L.  c.  63,  Sec.  77. 
(Commonwealth  to  be  made  respondent.) 
To  the  Honorable  the  Justices  of  the  Supreme  Judicial  Court, 
Respectfully  represents  the  petitioner : 

(1)  That  the  petitioner  is  a  corporation  organized  under  the 
laws  of 

(2)  That  the  petitioner  has  filed  its  returns  in  accordance  with 
law. 

(3)  That  under  the  provisions  of  the  Commonwealth  of 
Massachusetts  assessed  upon  the  petitioner  for  the  year  19  ,  an  ex- 
cise tax  of  $                 based  upon 

(4)  That  upon  ,  19  ,  the  petitioner  paid  said  tax 
to  the  treasurer  and  receiver  general  of  the  Commonwealth  after  pro- 
test in  writing. 

(5)  That  the  petitioner  is  aggrieved  by  the  exaction  of  said  excise 
tax,  for  the  following  reasons; 


Wherefore,  the  petitioner  prays  that  the  treasurer  and  receiver 
general  of  the  Commonwealth  of  Massachusetts  may  be  ordered  to 
pay  to  the  petitioner  the  amount  of  said  tax,  with  interest  and  costs. 

FORM  NO.  18 

Petition  to  Probate  Court  to  Determine  Liability  to  Inheritance 

Tax  under  G.  L.  c.  65,  Sec.  30. 

To  the  Honorable,  the  Judges  of  the  Probate  Court  in  and  for  the 
County  of 
Respectfully  represents  of  in  the  county  of 

that  he  brings  this  petition  against  treasurer  and 

receiver  general  of  the  Commonwealth  of  Massachusetts  and  alleges 
him  to  be  the  one  party  interested  in  the  matter  of  said  petition,  and 
petitioner  further  represents  that  he  is  executor  (administrator,  trus- 
tee) of 

That  by  the  terms  of  said 


774  Taxation  in  Massachusetts 

That  the  Commonwealth  of  Massachusetts  claims  that  said  estate 
is  liable  to  a  succession  tax  under  the  provisions  of  ,  but  that 

your  petitioner  is  advised  that  said  estate  is  not  liable  under  such 
provisions  to  such  a  tax. 

Wherefore,  your  petitioner  prays  that  the  court  will  determine 
whether  or  not  said  estate  is  liable  to  a  succession  tax  under  said 
provisions. 

FORM  NO.  19 

Order  Assessing  Betterment. 
(G.  L.  c.  80,  Sec.  1.) 

Whereas  has  been  located,  constructed  and  completed  and 

six  months  have  not  passed  since  the  completion  of  said 

Now,  therefore,  this  board  acting  under  the  provisions  of  Chapter 
80  of  the  General  Laws  being  of  the  opinion  that  each  of  the  estates 
described  in  the  following  schedule  received  benefit  and  advantage 
from  such  location  and  construction  beyond  the  general  advantage  to 
the  community  and  that  said  estates  are  all  the  estates  receiving  such 
benefit  and  advantage  do  hereby  determine  that  the  amount  of 
$  is  the  cost  incurred  by  said  city  (or  town)  for  such  improve- 

ment and  do  hereby  assess  upon  each  of  said  estates  the  amount  here- 
inafter set  against  the  description  thereof  as  the  part  of  said  cost 
proportionate  to  and  not  exceeding  said  benefit  and  advantage  so 
received  by  the  estate. 

FORM  NO.  20 

Petition  for  Writ  of   Certiorari   to   Quash  Betterment.     See 

G.  L.  c.  80,  Secs.  5-10  inc. 

To  the  Honorable,  the  Justices  of  the  Supreme  Judicial  Court, 
Respectfully  represents  of  in  the  county  of 

That  upon  ,  19     ,  the  board  of  of  the 

of  purporting  to  act  under  authority  of  Chapter  80  of  the 

General  Laws  levied  upon  the  land  of  your  petitioner  situated 
an  assessment  in  the  sum  of  for  the  benefit  and  advantage 

alleged  to  result  from  the  laying  out  and  construction  of 

That  said  assessment  is  erroneous,  void  and  illegal  for  the  follow- 
ing reasons. 


Appendix  775 

Wherefore  your  petitioner  prays  that  a  writ  of  certiorari  may 
issue  from  this  honorable  court  directed  to  said  board  of 
of  the  of  commanding  them  to  return  to  this 

court  true  and  perfect  records  of  their  proceedings  relative  to 
to  the  end  that  all  said  proceedings  may  be  quashed  and  further  dealt 
with  as  law  and  justice  may  require. 

FORM  NO.  21 

Answer  or  Return  to  Petition  for  Writ  of  Certiorari.     See 

G.  L.  c.  80,  Secs.  5-10  inc. 
We,  the  board  of  of  the  of 

do  certify  and  return  that  on  ,  19     ,  in  pursuance  of  the  au- 

thority vested  in  us  by  law  we  passed  the  following  order,  to-wit : 


And  we,  the  respondents,  further  say  that  the  assessment  levied 
upon  the  petitioner  under  said  order  was  proportional  and  reasonable 
and  in  accordance  with  law. 

And  we,  the  respondents,  further  say  (Here  set  up  any  extrinsic 
facts  tending  to  show  that  justice  does  not  require  the  quashing  of  the 
assessment.) 


In  witness  whereof  we  have  this       day  of  ,  19     ,  severally 

subscribed  our  names. 


of  the  of 


FORM  NO.  22 

Declaration  in  Action  to  Recover  Back  Void  or  Unconstitutional 
Betterment.     (G.  L.  c.  80,  Secs.  5-10  inc.) 

The  plaintiff  says  that  upon  ,   19     ,  the  board  of 

of  the  defendant  town  (or  city)  purporting  to  act  under  authority 


776  Taxation  in  Massachusetts 

of  levied  upon  the  land  of  the  plaintiff  situated 

an  assessment  in  the  sum  of  for  the  benefit  and  advantage 

alleged  to  result  from  the  laying  out  and  construction  of  ; 

that  said  assessment  was  committed  to  the  collector  of  taxes  of  said 
town  (or  city)  and  the  plaintiff  upon  ,  19     ,  paid  the  same 

to  said  collector  after  protest  in  writing  (or  after  said  collector  had 
published  notice  of  the  sale  of  said  land  for  the  non-payment  of  said 
assessment.) 

That  said  assessment  is  wholly  illegal  and  void  for  the  following 
reasons 


but  the  defendant  has  had  and  received  the  money  of  the  plaintiff 
so  unlawfully  taken  from  him. 

Wherefore,  the  defendant  owes  the  plaintiff  the  sum  of  $ 
with  interest  thereon  at  the  rate  of  6  per  cent  per  annum  from 
(date  of  payment). 


FORM  NO.  23 

Petition    to    Superior    Court    for    Abatement    of    Betterment 

(G.  L.  c.  80,  Sec.  7). 

Your  petitioner  says  that  he  is  the  owner  of  a  certain  parcel  of 
land  on  Street  in  the  city  (or  town)  of  bounded 

and  described  as  follows: 


That  on  the  board  of  of  said  city  (or  town) 

of  laid  out  said  Street  as  a  public  way  (or  took 

certain  land  in  the  neighborhood  of  said  land  of  petitioner  for  a  cer- 
tain public  improvement)  and  said  way  (or  improvement)  was  there- 
after constructed  by  said  city  (or  town)  ;  and  on  said  board  of 
levied  an  assessment  for  the  laying  out  (or  establishment  of  said 
way  (or  improvement)  upon  said  parcel  of  petitioner  in  the  sum  of 
$                 ;  that  said  parcel  of  petitioner  received  from  said  laying 


Appendix  777 

out  (or  establishment)  and  construction  much  less  benefit  than  the 
amount  of  said  assessment,  and  said  assessment  is  disproportionate  and 
excessive;  and  the  Collector  of  said  city  (or  town)  on  sent 

notice  of  said  assessment  to  petitioner,  and  petitioner  within  six 
months   thereafter,   namely   on  filed    with    said    board   of 

a  petition  for  the  abatement  of  said  assessment,  and  said 
board  on  rejected  said  petition  and  sent  to  petitioner  writ- 

ten notice  of  its  action  thereon;  and  petitioner  is  aggrieved  by  the 
doings  of  said  board  as  above  set  forth  and  appeals  therefrom  to  this 
Honorable  Court. 


INDEX 


INDEX 


[Citations  are  to  pages] 


Abatement: 
application  for,  date  of,  286. 
by  assessors,  285. 
by   county   commissioners,   necessity 

of  list,  296. 
by    county   commissioners,   payment 

not  required,  295 
certificate  of,  301. 

form  of,  766. 

not  a  judgment,  295. 

to  be  exhibited  by  taxpayer,  332. 
complaint  for  refusal  to  grant,  form, 

765. 
forbidden  unless  list  filed,  287. 
judgment  and   costs  on,  299. 
notice  of  decision  of,  293. 
of   assessment   for   drainage    of   wet 

lands,  729. 
of  betterment  assessments,  692. 
of  corporation  tax,  181,  573,  596. 
of  corporation  tax,  form  of  petition 

for,  773. 
of  income  tax,  494. 
of    inheritance    tax,    for    illegality, 

181,  651. 
of  inheritance  tax,  for  overvaluation, 

650. 
of  local  tax  on  corporations,  notice 

to    commissioner,    303. 
of  national  bank  stock  tax,  511. 
of  tax  on  public  service  companies, 

583. 
of  tax  on  real  estate  and  machinery 

of  corporations,  295. 
of    tax    on    telephone    or    telegraph 

companies,  302. 
of  tax  on  trust  companies,  583. 

of  uncollectible  taxes,  302. 
on  appeal  to  county  commissioners, 

293. 
on  appeal  to  superior  court,  297. 
on    appeal    to    superior    court,    pro- 
cedure on,  298. 
only    remedy    for    over-assessment, 

344,  402. 
payment  of  costs  by  petitioner,  293. 
petition   for,   form   of,   765. 
protest  not  necessary  for,  300. 


Abatement  —  Continued: 

provision  for  speedy  trial,  298. 

recording  of  required,  286. 

reference  to  commissioner,  299. 

recovery  of  expenses  and  costs  by 
town,  300. 

repayment  of,  interest  on,  300. 

right  to,  as  affecting  constitution- 
ality  of  tax,   127. 

superior  court  requires  payment  in 
advance,  299. 

Absence,  Leave  of: 
on  half  pay  invalid,   109. 

Abstract: 
of  the  tax  laws,   133. 

Academy: 
exemption  of,  from  taxation,  200. 
blic  aid  to,  forbidden,  110. 

Accounts: 
of   collector,  396. 
probate,     allowance     of,     necessary 

when   executors   are   trustees,   246. 
probate,     allowance     of,     prohibited 

until   inheritance   tax   paid,  648. 

Accrual  Basis: 
for   determining   income   authorized, 
465. 

Accrued  Interest: 
taxable,  466. 

Accumulated  Income: 
taxation  of,  470. 

Action  : 

against    assessors    for    illegal    assess- 
ment, 314. 

against  collector,  for  breach  of  war- 
ranty, 362. 

for  failing  to  collect  taxes,  396. 
for  illegal  collection,  398. 
for   unlawful   arrest,   339. 

against  corporation  to  collect  excise 
tax,  572. 

against  officer  for  unlawful  arrest, 
341. 


781 


782 


Taxation  in  Massachusetts 


[Citations  are  to  pages] 


Action  —  Continued: 
against  person  paying  too  little  for 

redemption,  378. 
against  purchaser  at  illegal  sale,  385. 
against  town,  by  fiduciary,  404. 
by  partnership,  404. 
does  not  lie   for   over-assessment, 
402. 

payment   under  duress  or  protest 

required,  406. 
for  informality  in  assessment,  405. 
for  omitted   assessment,   404. 
to  recover  back  betterment  assess- 
ment, 689. 
to  recover  back  betterment,  form 

of  declaration,  775. 
to  recover  back  tax,  322,  400. 
to  recover  back  tax,  form  of  decla- 
ration,  762. 

by  collector  to  collect  tax,  11,  342. 
to  collect  tax,  form  of  declaration, 

762. 
to  collect  tax  lies,  though  tax  ex- 
cessive, 344. 

by  commissioner  on  collector's  bond, 
166. 

by  commonwealth  to  collect  income 
tax,  493. 

by  commonwealth  to  collect  inheri- 
tance tax,  656. 

by  owner  who  has  surrendered  land 
for  value  thereof,  682. 

by    person    paying    tax    against    one 
who  has  agreed  to  pay  it,  371. 

by    person    whose    money    has   been 
withheld  by  town,  395. 

bv  person  whose  tax  has  been  abated 
295. 

denned,  343. 

does  not  lie   to   collect  apportioned 
tax,  310. 

does  not  lie  to  recover  back  exces- 
sive betterment,  689. 
does  not  lie  to  recover  back  exces- 
sive tax,  402. 

for   legacy,   liability   for   inheritance 
tax  determined  in,  655. 

in  case  of  partial  invalidity  of  tax, 
311. 

of  contract  against  collector,  396. 

of  contract  to  collect  special  assess- 
ment, 685. 

of  tort  against  assessors,  314. 

of  tort  against  collector,  398. 

of  tort  against  town,  408. 

to  collect  corporation  tax,  594. 


Action  —  Continued: 
to  collect  income  tax,  493. 
to  collect  inheritance  tax,  656. 
to    collect    penalty    on    corporation, 

599. 
to    collect    tax    levied    by    another 

state,  31. 

to    collect   tax    on   national   bank 

stock,  511. 
to    recover    money    paid    at    invalid 

sale,  360. 
to    recover    property    illegally    sold, 

337. 

Adjournment: 
of  sale  of  goods  distrained,  336. 
of  sale  of  goods  distrained,  form  of 

notice,  413. 
of    tax    sale,    required    before    town 

can  purchase,  363. 
of  tax  sale,  what  constitutes,  364. 

Administrator : 

accounts   of,   not   allowed    until    in- 
heritance tax  paid,  648. 

ancillary,  taxation  of,  78. 

appointment    of,    on    application    of 
commissioner,  747. 

compensation  of,  subject  to  inherit- 
ance tax,  when,  643, 

filing    inventory   by,   647. 

filing  list  by,  260. 

foreign,  liability  for  delivering  assets 
to,  634. 

liability  of,  for  income  tax,  468. 

liability  of,  for  inheritance  tax,  627, 
644. 

liability  of,  for  tax  assessed  before 
appointment,  243. 

may     appeal     from     commissioner's 
appraisal,  651. 

may    apply    for    instructions    as    to 
inheritance  tax,  654. 

may  be  ordered  to  pay  inheritance 
tax,  657. 

of    collector,    to    return    books    and 
papers,  325. 

provisions  respecting,  in  income  tax 
law,  475. 

returns  of  bank  stock  by,  188. 

situs  of  property  in  hands  of,  78. 

taxable   for  estate   of  deceased,  243. 

to  deduct  or  collect  inheritance  tax, 
627. 

to   repay    legatee   tax    illegally    col- 
lected, 646. 
See  also  Fiduciary. 


Index 


783 


Adopted  Child: 
treated  as  real,  for  purposes  of  in- 
heritance tax,  609. 

Advertisement: 
of  sale,  fee  for,  328. 
of  sale,  must  be  in  English  language, 

353. 
of  sale  of  land  of  low  value,  365. 

Affidavit: 
of  collector,  367. 
of  collector,  fee  for,  329. 
of    collector,    prima    facie    evidence, 

320. 
of  demand  and  notice,  form  of,  422. 
of  demand,  form  of,  421. 
of  posting  and  publishing,  form  of, 

422. 
that  no  person  bid  at  tax  sale,  363. 
that  tax  title  is  invalid,  390. 

Agencies: 
of  non-resident  dealers,  taxation  of, 

36. 
of  United  States,  state   cannot  tax, 

49. 

Agent: 
assessor  and  collector  not,  of  town, 

408. 
of  non-resident  purchaser  at  tax  sale, 

362. 

Aggregates: 
tables  of,  275. 
tables  of,  how  filled,  278. 

Aggrieved  Person: 
what  constitutes,  285,  293. 

Agreement : 

among  parties  as  to  payment  of 
tax,  744. 

by  lessee  to  pay  taxes,  as  including 
betterments,  119. 

different,  between  landlord  and  ten- 
ant, evidence  of,  233. 

to  pay  income  tax,  by  unincorpo- 
rated associations,  445. 

Agricultural  College: 
Massachusetts,  fraternity  houses  tax- 
able, 197. 
Agricultural  Society: 
property   of,  exempt  from  taxation, 
203. 

Aldermen,  Board  of: 
approval  of  collector's  bond  by,  328. 
assessment  of  cost  of  street  sprink- 
ling by,  145. 


[Citations  are  to  pages] 
Alienation: 


of  land,  what  constitutes,  351. 

Aliens : 
discrimination   against,  in   tax   laws, 

32. 
liability  to  poll  tax,  188. 

Alimony: 
not  taxable  as  annuity,  451. 

Allocation : 
of  income  of  domestic  business  cor- 
porations, 554. 
of    income    of    foreign    corporations, 
565. 

Almshouse : 
may  be  supported  by  taxation,  104. 

Alteration : 
of    determination    of    value    for    in- 
heritance tax,  650. 

Amendment : 
of  money  bills  permissible,  101. 

American  Experience  Tables: 
copy  of,  639. 
valuation  by,  636. 

Animals: 
kept  in  other  states  not  taxable  here, 

210. 
of  non-residents,  taxable,  240. 
young,  exemption  of,  211. 

Annual  Tax  Acts: 
composition  of,  168. 
history  of,  184. 

Annuity : 

defined,  450. 

taxation  of  as  income,  450. 

valuation  of,  for  inheritance  tax,  636. 
Answer : 

to  petition  for  abatement  not  re- 
quired, 297. 

Appeal : 

Board   of,  see  Board   of  Appeal. 

by  person  aggrieved  by  revised  tax, 
306. 

corporation  may  be  required  to  take, 
580. 

from  apportionment  of  bank  stock 
tax,  513. 

from  apportionment  of  tax  on  real 
estate    subsequently    divided,    310. 

from  county  commissioners,  by  cer- 
tiorari, 296. 

from  refusal  to  abate  taxes,  form 
of,  765. 


784 


Taxation  in  Massachusetts 


[Citations  are  to  Pages] 

Appeal — Continued: 

from  valuation  for  inheritance  tax, 
651. 

hearing  on,  satisfies  constitution,  62. 

to  Board  of  Appeal  on  corporation 
tax,  593. 

to  Board  of  Appeal  on  income  tax, 
496. 

to  county  commissioners,  on  exces- 
sive betterment,  697. 

to  county  commissioner,  on  exces- 
sive tax,  293. 

to  superior  court,  on  excessive  bet- 
terment, 693. 

to  superior  court,  on  excessive  drain- 
age assessment,  730. 

to  superior  court,  on  excessive  in- 
come tax,  498. 

to  superior  court,  on  excessive  tax, 
297. 

Apportionment: 

application    for    does    not    preclude 

abatement,  701. 
of  betterment  assessment,  700. 
of  betterments  on  land  subsequently 

divided,  702. 
of   public   burdens   in   discretion   of 

legislature,  114. 
of  state  tax,  167. 
of  tax  among  tenants  in  a  building, 

234. 
of  tax  between  vendor  and  vendee, 

745. 
of  tax   on   real   estate   subsequently 

divided,  309. 
purchaser  after,   not   liable   for  tax, 

343. 


Appraisal : 
of  property  for  inheritance  tax,  649. 
probate,    to    be    filed    by    adminis- 
trator, 647. 
of  state  institutions,  171. 

Appropriation : 

amount  of,  in  discretion  of  town,  113. 

county,  amount  of,  136. 

for  certain  boards,  assessed  on  public 
service  companies,  141. 

illegal,  restraint  of,  147. 

illegal,  whole  tax  not  invalidated  by, 
311. 

municipal,  amount  of,  138. 

not  required,  to  repay  abated  cor- 
poration tax,  597. 

purpose    of,   must   be    declared,    113. 

state,  amount  of,  136. 


April  First: 
domicile  as  of,  224. 
ownership  as  of,  229. 

Arrest: 

by  sheriff  or  constable,  341. 

certificate  of,  339. 

for  non-payment  of  tax,  338. 

for  non-payment  of  tax,  constitu- 
tional, 66. 

for  non-payment  of  tax,  fee  for,  328. 

form  of  certificate  of  commitment, 
413. 

form  of  certificate  to  be  endorsed 
on  copy  of  warrant,  415. 

illegal  tax  collected  by,  may  be  re- 
covered back,  406. 

liability  of  collector  for  illegal,  396. 

trustee  in  bankruptcy  not  subject  to, 
346. 


Assessment : 
at  less  than  full  value,  effect  of,  55. 
betterment,  see  Special  Assessment, 
can  be  made  only  by  assessors,  252. 
list,  details  of,  273. 
local  on  corporation  not  conclusive, 

580. 
must  be  formal  public  record,  59. 
of  annual  tax,  253. 
of  cost  of  private  ways,  707. 
of  deposits  in  state  treasury,  181. 
of  excise  on  corporations,  569. 
of  income  tax,  491. 
of  inheritance  tax,  651. 
of    state,    county    and    town    taxes 

joined,  256. 
of  tax  on  insurance  companies,  528. 
of  tax  on  omitted  property,  304. 
partially  invalid,  effect  of,  311. 
special,  see -Special  Assessment. 

Assessors : 

abatement  of  excessive  taxes  by,  285. 

abatement  of  uncollectible  taxes  by, 
302. 

acts  of,  cannot  be  collaterally  im- 
peached, 343. 

appointed  by  selectmen,  when,  153. 

appointment  of,  cannot  be  collater- 
ally impeached,  348. 

apportionment  of  betterment  assess- 
ment by,  701. 

are  public  officers,  408. 

assistant,  appointment  of,   155. 

assistant,  election  of,  150. 

books   of,  271. 


Index 


785 


[Citations  are  to  Pages] 


Assessors  —  Continued: 

cannot  add  items  to  list  without  in- 
quiry, 264. 

commission  of  tax  list  to  collector 
by,  280. 

compensation  of,  317. 

county  commissioners  appoint,  when, 
257. 

de  facto,  acts  of,  cannot  be  ques- 
tioned, 155. 

defined,   139. 

details  in  book  to  be  kept  by,  278. 

doom  of,  when  no  list  filed,  266. 

duties  of,  fixed  by  law,  252. 

election   of,    150. 

election  of,  cannot  be  collaterally  im- 
peached, 348. 

enrollment  of  militia  by,  142. 

estimate  of  property  by,  266. 

failure  to  act,  remedy  for,  257. 

fixing  of  tax  rate  by,  253. 

furnishing   of   blank   lists  by,  261. 

inquiries  by,   264. 

liability  of,  for  failure  to  take  oath, 
157. 

liability  of,  to  persons  unlawfully 
assessed,  314. 

liability  of,  to  town  for  negligence, 
157,  '317. 

listing  of  voters  by,   164. 

majority  of,  may  act,  154. 

may  abate  tax  of  their  own  motion, 
302. 

may  act  notwithstanding  death  of 
one,  154. 

may  appeal  from  apportionment  of 
bank  tax,  513. 

may  apportion  town  among  them- 
selves, 252. 

may  be  chosen  collector,  151. 

may  be  prosecuted  by  commissioner, 
165. 

may  include  all  taxes  in  one  assess- 
ment, 256. 

may  make  inquiries  of  taxpayer,  264. 

may    make    overlay,   255. 

may  make  re-assessment,  306. 

must  act  as  board,  252. 

not  agents  of  town,  408. 

not  to  abate  tax  unless  list  filed, 
287. 

not  to  commit  tax  until  collector's 
bond   approved,   280. 

notice  of  building  permits  to  be 
given  to,  736. 

notice  of  decision  on  petition  for 
abatement,  293. 


Assessors  —  Continued: 

notice  of  request  for  apportionment, 
310. 

notice  to  commissioner  of  property 
of  corporations,  313. 

notice  to  taxpayers  to  bring  in  lists, 
258. 

notice  to  town  where  residence 
claimed,  221. 

oath  of,  156. 

oath  of,  proof  of,  317. 

oath  of,  to  valuation  list,  279. 

penalty  on,  for  failure  to  keep  books 
as  required,  319. 

penalty  on,  for  failing  to  swear  to 
valuation,  279. 

penalty  on,  for  false  entry  on  tax 
list,  165. 

penalty  on,  for  false  valuation,  156. 

penalty  on,  for  making  unlawful 
agreement,   318. 

penalty  on,  for  neglecting  to  assess 
taxes,  319. 

penalty  on  town,  for  not  choosing, 
150. 

personal  liability  of,  314. 

proof  of  appointment  of,  154. 

reassessment  of  invalid  taxes  by,  306. 

removal  of,   154. 

return  of  exempt  property  by,  313, 
314. 

salary  of,  subject  to  trustee  process 
when,  317. 

selectmen  to  act  as,  when,  151. 

state,  county  and  town  taxes  as- 
sessed by,  251. 

statement  of  cause  of  diminished 
valuation,  313. 

street  sprinkling  assessments,  inclu- 
sion of,  in  warrant,  145. 

supervisors  of,  appointment  and 
duties.  165. 

term  of,  154. 

to  apportion  tax  on  request,  309. 

to  deposit  tax  list  for  public  in- 
spection, 271. 

to  deposit  valuation  with  commis- 
sioner, 279. 

to  determine  value  of  bank  stock. 
506. 

to  give  certificate  of  abatement,  301. 

to  give  certificate  of  exemption  from 
bank  stock  tax,  515. 

to  re-assess  when  tax  title  proves 
invalid,  390. 

to  receive  lists  as  true,  264. 

to  require  oath  by  taxpayer,  261. 


786 


Taxation  in  Massachusetts 


[Citations  are  to  Pages] 


Assessors  —  Continued: 

to  report   omitted   assessments,   278. 
to  sign  tax  warrant,  281. 
vacancy  in,   154. 
valuation  list  of,  271. 
Assignee : 
for  creditors,  collection  of  tax  from, 

322,  345. 
for    creditors,    liability    for    income 

tax,  475. 
of  lease,  bound  by  covenant  to  pay 

tax,  234. 

Assistant  Assessors: 
appointment  of,  155. 
election  of,  150. 

Associations: 
of  employees,  exempt  from  taxation, 

204. 
with   transferable   shares,   see   Unin- 
corporated Associations. 
Auditing: 

of  municipal  accounts,  assessment  of 
expense  of,  162. 

Bad  Debts: 

deduction  of,  from  income,  462. 
Bank: 

co-operative,  see  Co-operative  Banks 
deposits,  situs  of,  77. 
deposits,  tax  on  an  excise,  14. 
early  methods  of  taxing,  505. 
exemption  of,  in  charter,  a  contract, 

27. 
national,  see  National  Banks, 
not  a  business  corporation,  534. 
notes,  situs  of,  for  taxation,  76. 
notes,  tax  on,  8. 
savings,   see  Savings  Banks, 
state,  taxation  of,  506. 

See  also  Trust  Companies. 

Bankruptcy: 

collection  of  taxes,  in  case  of,  346. 

discharge  in,  does  not  release  tax, 
346. 

of  collector,  does  not  discharge  de- 
falcation, 397. 

proof  of  taxes  in,  323. 

trustee  in,  liability  to  income  tax, 
475. 

trustee  in;  liable  to  taxation  by 
state,  50. 

Beet  Sugar: 
former  exemption   of,  92. 

Beneficiary: 
claim  of  exemption  for,  by  trustee, 
474. 


Beneficiary  —  Continued: 
liable  for  tax  on  income  from  foreign 

trustee,  473. 
taxation  of  trustee,  239. 

Benefits : 
actual,  cannot  be  exceeded  by  bet- 
terment,  124,  679. 
classes  of,  defined,  672. 
general,  cannot  be  assessed,  122,  123. 
how  ascertained,  674. 
not  essential  to  general  tax,  116. 
set-off  of,  673. 

Betterments : 

See   Special   Assessments. 
Bill  in  Equity: 
to  enjoin  foreign  corporation,  form 

of,  771. 
to  redeem  from  tax  title,  form  of, 

769. 
to  remove  cloud  from  title,  form  of, 
770. 

Bill  of  Lading: 

tax  on  foreign,  invalid,  22. 
Bill,  Tax: 

for  corporation  tax,  when  sent,  493. 

for  income  tax,  when  sent,  323. 

for  local  tax,  when  sent,  583. 

Board  of  Appeal: 

appeal  to,  on  corporation  tax,  593. 

appeal  to,  on  distribution  of  national 
bank  stock  tax,  513. 

appeal  to,  on  income  tax,  496. 

determination  of  amounts  to  be  dis- 
tributed,  179. 

membership  of,   139. 

Bonds: 

collector's,  form  of,  766. 

collector's,   liability   on,   326. 

interest  on,  liability  to  income  tax, 
437. 

liability  to  inheritance  tax,  617. 

liability  to  seizure   on  distress,  336. 

municipal,  exempt  from  taxation, 
when,  213. 

secured  by  mortgage,  taxation  of, 
231. 

serial,  taxation  to  provide  for  pay- 
ment of,  142. 

situs  of,  for  purposes  of  inheritance 
taxes,  82. 

situs  of,  for  purposes  of  local  tax,  76. 

state,  taxation  of,  24,  213. 

tax  exempt  in  one  state  taxable  in 
another,  31. 

taxation  of,   192,  437. 


Index 


787 


[Citations 

Bonds  —  Continued: 

United    States,    exempt    from    state 
taxation,  48,  213. 
Books,  Inspection  of: 

constitutional  rights,  63. 

for  corporation  taxes,  527,  570,  591. 

for  income  taxes,  486. 
Boston,  City  of: 

filing  of  lists  in,  262. 

form   of   collector's   warrant   in,   764. 

sewer  assessments  in,  711. 

sidewalk  assessments  in,  722. 

street  betterments  in,  680. 

tax  limit  in,  160. 

Boston  Elevated  Railway  Co: 
taxation  of,  589. 

Bounties: 

constitutionality  of,  108. 

Boxing   Matches: 
taxation  of  gross  receipts  of,  737. 

Branch  Stores: 
of  non-resident  dealers,  taxation  of, 
36. 

Bridges: 
cost  of,  may  be  imposed  on  specified 

towns,   117. 
interstate,  taxable  as  property,  43. 

Brokers: 
duties  of,  as  to  stock   transfer  tax, 

603. 
interest  deduction  from  income  tax, 

447. 
taxation    of,    on    securities   held    on 

margin,  446. 

Brown-Tail  Moths: 
assessment  for  exterminating,  732. 

Buildings: 

bank,  taxable  as  real  estate,  511,  517 

constitute  real  estate  for  taxation 
purposes,  190. 

erected  by  lessee,  taxation  of,  235. 

erection  of,  in  park,  after  better- 
ments assessed,  131. 

notice  to  assessors  of  new,  736. 

obligation  of  lessee  to  pay  taxes  on, 
235. 

separate  valuation  of,  for  statistical 
purposes,  276. 

valuation  of,  268. 

Burden  of  Proof: 
on  one  claiming  change  of  domicile, 

223. 
on  petitioner  for  abatement  of  spe- 
cial assessment,  694. 


are  to  Pages] 

Burial  Grounds,  see  Cemeteries. 

Business: 
corporations,  see   Corporations, 
defined,  453. 
doing,  defined,  550. 
expenses  of,  what  constitutes,  459. 
income,  determination  of,  458. 
income,  taxation  of,  451. 
place  of,  what  constitutes,  36. 
situs,  of  intangible  property,  76. 

Canal : 

toll  for  use  of,  not  tax  on  interstate 
commerce,  34. 

Capital : 

distinguished  from  income,  434. 
distribution   of,   not   taxable   as   in- 
come, 446. 
employed  in  business,  situs  of,  74. 
tax  on,  an  excise,  14. 

Carriages: 
tax  on,  not  a  direct  tax,  13. 

Cemeteries : 
exemption    of,   from    special    assess- 
ment, 675. 
exemption  of,  from  taxation,  206. 

Certificate : 
of   abatement,   301. 
of  abatement,  form  of,  766. 
of  payment  to  collector,  377. 
of    payment    to    collector,    form    of, 

768. 
of  redemption,  form  of,  424. 

Certiorari: 

answer  or  return,   form   of,  775. 

procedure  in,  687. 

to  correct  errors  of  county  commis- 
sioners, 296. 

to  quash  betterment  assessments, 
687. 

to  quash  betterment  assessments, 
form  of  petition,  774. 

to  quash  refusal  of  assessors  to  abate 
a  tax,  298. 

Charges  of  Imprisonment: 
what  constitute,  340. 

Charitable  Institutions: 

bequests  to,  exempt  from  inherit- 
ance tax,  619. 

exemption  of,  from  taxation,  197. 

exemption  of,  in  charter  a  contract, 
27. 

liability  of,  to  betterment  assess- 
ments, 675. 


788 


Taxation  in  Massachusetts 


[Citations  are  to  Pages] 
Charitable  Institutions  —  Continued: 


obligation  of,  to  bring  in  lists,  258. 
refund    to,    of   national    bank    stock 
tax,  515. 

Charitable  Trusts: 
liability  to  income  tax,  472. 

Charitable  Uses: 
statute  of,  198. 

Charter : 

acceptance  of,  as  a  contract,  27. 

exemption  from  taxation  in,  con- 
strued, 216. 

Province,  excises  under,  95. 

Province,  provisions  as  to  taxation 
in,  87. 

Check : 
payment  of  tax  by,  323. 

Child   Labor: 
tax   on,   constitutionality    of,   8. 

Church: 
power  of  state  to  aid,  110. 
See  also  Religious  Institutions. 

Cities,  see  Municipal  Corporations. 

Citizen: 

of  another  state,  discrimination 
against,  30. 

Claim : 

of  uncertain  validity  not  taxable  as 
property,  57. 

Classification   of   Property: 

for  statistical  purposes,  277. 

for  taxation,  constitutionality  of,  54. 

Clerk,  Town: 
to    demand    return    of    tax    records, 
325. 

Clock,  Town: 
may     be     established     with     public 
funds,  104. 

Cloud  on  Title: 

equitable  relief  from,  385. 
equitable   relief   from,   form    of   bill, 
770. 

Club: 

.  taxable    as    partnership    on    income, 

477. 

Collection : 
by  arrest  and  imprisonment,  338. 
by  distress,  335. 
by  sale  or  taking  of  land,  346. 


Collection  —  Continued: 

by  suit,  342. 

by  withholding  money  due  taxpayer, 
395. 

due  process  of  law  in,  66. 

effect  of  change  of  statutes  respect- 
ing, 68. 

from  estates  of  deceased  persons, 
344. 

from  insolvent  estates  of  deceased 
persons,  748. 

from  receivers,  749. 

from   trustees  in  bankruptcy,  346. 

of   betterment  assessments,  684. 

of  business  corporation  taxes,  572. 

of  corporate  -franchise  taxes,  594. 

of  income  taxes,  493. 

of  inheritance  taxes,  656,  657. 

of   insurance   company   taxes,   528. 

of  national  bank  stock  taxes,  511. 

of  stock  transfer  taxes,  603. 

of  taxes  assessed  after  sale  or  taking, 
373. 

Collector: 
accounts  of,  examination   of,  396. 
action  at  law  b3r,  342. 
administrator   of,    to    deliver   books, 

325. 
affidavit  of,  320,  367. 
bond  of,  326. 
bond  of,  form  of,  766. 
books  and  records  of,  324. 
charges  and  fees  of,  328. 
commission   of  uncollected   taxes  to 

successor,  399. 
de  facto,  liability  of,  396. 
deed  executed  by,  357. 
defalcation    of,    breach    of    fiduciary 

duty,  397. 
defined,  320. 

demand  for  tax  by,  330. 
duties  of,  321. 
election  of,  150. 
is  a  public  officer,  408. 
liability   for  breach   of  warranty   on 

tax   deed,  362. 
liability    for    collecting    invalid    tax. 

398. 
liability  for  failure  to  arrest,  340. 
liability  for  failure  to  collect,  327. 
liability  for  illegal  arrest  or  distress, 

398." 
liability  for  unlawful  acts,  396. 
liability  for  unlawful  arrest,  339. 
liability    on     warrant     for    drainage 

assessment,  752. 


Index 


789 


[Citations 

Collector  —  Continued: 
list  of,  contents  of,  280. 
may  be  authorized  to  use  powers  of 

treasurer,  158. 
may  be  required  to  serve  demand  at 

particular  place,  352. 
may   determine   whether   to   sell   or 

take,  393. 
may  issue  warrant  to  sheriffs  or  con- 
stables, 340. 
may     require     aid     in     performing 

duties,  340. 
may   serve   summons,   332. 
may  take  land  for  non-payment  of 

tax,   365. 
penalties  for  violation  of  duties  by, 

412. 
proceedings  by,  if  tax   title  invalid, 

390. 
proof  of  election  of,  151. 
protected  by  warrant,  397. 
removal  of,  399. 

return  of  goods  distrained  by,  336. 
temporary,  appointment   of,    159. 
to  accept  partial  payments,  333. 
to  give  certificate  of  payment,  370. 
to     furnish     statement     of     existing 

liens,  334. 
to   notify   assessors   of   uncollectible 

taxes,  302. 
to  pay  over  taxes  collected,  321. 
to  purchase  for  town,  when,  363. 
to  send  out  tax  bills,  323. 
to    surrender   books    on   resignation, 

325. 
warrant  of,  form  of,  762,  764. 

College : 

exemption  of  property  of,  200. 
public    aid    to,    constitutionality    of, 
110. 

Colonial  Laws: 

abatement  of  taxes  under,  285. 
appointment  of  assessors  under,  151. 
assessment  of  taxes  under,  183. 
collection  of  taxes  under,  321  . 
collectors  of  taxes  under,  158. 
exemptions   under,    194. 
income  taxes  under,  452. 
poll  taxes  under,   186. 
proportional  taxation  under,  87. 
valuation  under,  87. 

Commercial  Traveller: 
taxation    of,   under   state    authority, 
35. 


are  to  pages] 

Commissioner  of  Corporations  and 
Taxation : 

abatement  of  taxes  on  worthless 
land,   302. 

annual  reports  of,  182. 

application  for  appointment  of  ad- 
ministrator by,  747. 

apportionment  of  state  tax  by,  167. 

determination  of  distributions  by, 
179. 

duties   of,    140. 

establishment  of  office  of,  141 

forwarding  of  information  to  local 
assessors  by,  167. 

notice  of  declarations  of  trust  to, 
144. 

to  give  notice  of  requirements  of 
income  tax  law,  484. 

to  prepare  income  tax  returns,  484. 

to  prepare  lists  of  taxable  property, 
166. 

to  prepare  regulations  for  corpora- 
tion tax,  572. 

to  prepare  regulations  for  income 
tax,  493. 

supervision  of  local  taxation  by,  165. 

Commodity: 
what  constitutes,  97. 

Commonwealth: 

bonds     of,     exempt    from     taxation. 

213,  440. 
property   of,   exempt   from   taxation, 

196. 
taxation  of  buildings  on  land  of,  226. 

Commutation   Tax: 
on  street  railways,  584. 

Compromise : 
of     inheritance     tax,     commissioner 

may  make,  640. 
of   will   does   not   affect   inheritance 

tax,  614. 

Conduits,  Underground: 
taxation  of,  246. 

value  of,  deducted  from  corporate 
franchise,  539,  578. 

Conservation : 
of   natural   resources   as   public   use, 
111. 

Conservators : 
application  of  income  tax  to,  475. 

Consolidation  of  Corporations: 

as  affecting  exemption,  28. 

as  affecting  tax  on  capital  stock,  37. 


790 


Taxation  in  Massachusetts 


[Citations  are  to  Pages] 


Consideration  Full: 
as  making  a  grant  not  taxable,  615. 

Constable: 
compensation  of,  158. 
issue    of    warrant    to,  by    collector, 

340. 
issue    of    warrant    to,    by    treasurer, 

393. 
to  be  collector,  when,  158. 

Constitution  of  Massachusetts: 
Declaration  of  Rights,  Art.  10,   102. 
Declaration  of  Rights,  Art.  12,  63. 
Part  2,  Chapter  1,  Sec.  1,  Art.  .4,  86, 

102. 
Part  2,  Chapter  1,  Sec.  3,  Art.  6,  100. 
Part  2,   Chapter  2,  Sec.   1,  Art.   11, 

102. 
Eighteenth    Amendment,    110. 
Thirty-ninth   Amendment,   111. 
Forty-first   Amendment,   91,  426. 
Forty-third  Amendment,  111. 
Forty-fourth    Amendment,    91,   433. 
Forty-sixth  Amendment,  111. 
Forty-seventh   Amendment,   111. 
Forty-ninth    Amendment,    111. 
Fifty-first    Amendment,    111. 
Fifty-ninth  Amendment,  29. 

Constitution  of  United  States: 

Article  I,  Section  7  (money  bills), 
101. 

Article  I,  Section  8  (duties  and 
excises),  13. 

Article  I,  Section  8  (interstate  com- 
merce), 33. 

Article  I,  Section  9  (direct  taxes), 
13. 

Article  I,  Section  10  (duties  of  ton- 
nage), 23. 

Article  I,  Section  10  (duties  on  im- 
ports), 21. 

Article  I,  Section  10  (impairing 
obligation  of  contracts),  24. 

Article  IV,  Section  1  (faith  and 
credit  to  acts  of  other  state),  31. 

Article  IV,  Section  2  (privileges  of 
citizen  of  state),  30. 

Article  VI,  (treaties  supreme  law  of 
land),  32. 

Fourteenth  Amendment  (due  proc- 
ess of  law),  52. 

Sixteenth  Amendment  (income  tax), 
14,  435. 

Constitutionality : 
depends  upon  practical  operation,  4. 
presumption  in  favor  of,  7. 


Construction : 
of  tax  laws  as  inapplicable  to  inter- 
state  commerce,  39. 
of  tax  laws  generally,   18. 

Contemplation  of  Death:    . 
defined,  624. 

Contract: 
affected  by  change  in  tax  laws,  69. 
exemption  from  taxation   as,  26. 
impairment  of  obligation  of,  24. 
with  United  States,  taxation  of  one 
having,  50. 

Contribution: 
by  private  parties,  effect  of,  103. 
by  joint  owners  to  payment  of  tax, 
391. 

Co-operative  Banks: 
exemption   of   shares   and   property, 

214. 
income  from  shares  not  taxable,  439. 
taxation  of,  521. 

Corporate  Excess: 
deductions  allowed,  538. 
deductions  not  allowed,  547. 
defined,  536. 
employed  within  the  commonwealth 

defined,  544. 
of   foreign   corporation,   taxation   of, 

560. 
rate  of  tax  upon,  548. 
taxation  of,  505,  536. 

Corporations: 
abatement  of  excise  on,  573. 
abatement    of    excise    on,    form    of 

petition,  773. 
.  abatement  of  tax  on  real  estate  and 

machinery  of,  295. 
affiliated  and  subsidiary,  taxation  of, 

550. 
amount    derived    from    taxation    of, 

136. 
application    for    repayment    of    tax, 

form  of,  762. 
application  to  Board  of  Appeal  by, 

593. 
chartered  by  United  States,  taxation 

of,  50. 
collection  of  taxes  on,  594. 
development    of    franchise    tax    on, 

531. 
disregarded  when   formed   to   evade 

taxation,  83. 
distribution  of  tax  on,  175. 


Index 


791 


Corporations  —  Continued: 
domestic  business,  affiliated,  taxation 

of,  550. 

allocation  of  income,  554. 

application  for  abatement  by,  573. 

assessment  of  omitted  tax  on,  571. 

assessment  of  tax  on,  569. 

collection  of  tax  on,  572. 

correction  of  federal  return,  553. 

deductions   allowed,   538. 

deductions  not  allowed,  547. 

deductions  of  cash  and  bills  out- 
side state,  543. 

deductions  of  intangible  securities, 
541. 

deductions  of  real  estate,  machin- 
ery and  structures,  539. 

deductions  of  tangible  property  in 
another  state,  542. 

deductions  of  value  of  machinery 
from  income,  559. 

defined,  535. 

determination  of  corporate  excess, 
536. 

double    assessment    on    failure    to 
file  return,  571. 

organization    and    filing    fees,    737. 

penalty  for  failure  to  file  return, 
573. 

privacy  of  returns  of,  553. 

rate  of  tax  upon,  548. 

returns  of,  551. 

taxation  of,  529. 

valuation  of  shares  of,  536. 

verification  of  returns  of,  570. 
domestic,  engaged  in  interstate  com- 
merce, taxation  of,  36. 
domicile  of,  226. 
effect    of    unconstitutionality    of    tax 

on,  573. 
establishment   of  present  system   of 

taxing,  533. 
excises  on  special  privileges  retained, 

591. 
foreign,     action     in    United     States 

courts  by,  599. 

affiliated,  taxation  of,  560. 

allocation  of  income  of,  565. 

application  for  abatement  of  tax, 
573. 

assessment  of,  for  omitted  tax,  571. 

assessment  of  tax  on,  569. 

collection  of  tax  on,  572. 

collection  of  tax  on,  constitutional 
methods,  86. 

credit     for     dividends     taxed     to 
stockholders,  567. 


Corporations  —  Continued : 

deductions  allowed,  538. 

deductions  not  allowed,   547. 

defined,  535. 

discrimination     against,     constitu- 
tionality of.  31. 

distribution  of  tax  on,  176. 

dividend  from,  subject  to  income 
tax,  441. 

double    assessment    on    failure    to 
file    return,   571. 

engaged    in    interstate    commerce, 
taxation  of,  40. 

excise  on,  constitutionality,  38. 

income    tax    on,    constitutionality, 
85. 

list  of  taxable  property,  292. 

penalty  for  failure   to  file  return, 
573. 

permanent     property,     acquisition 
of,  effect  of,  43. 

personal  property  of,  exempt,  208. 

restraint  of,  until  tax  paid,  394. 

restraint   of,  until  tax  paid,  form 
of  bill,  771. 

returns  of,  565. 

taxation  of,  560. 
form   of  application   for  repayment, 

762. 
good- will   of,   taxation   of,  544. 
inspection  of  books  and   papers  of, 

591. 
interest  on  overdue  taxes  on,  593. 
liable  for  inheritance  tax,  on  trans- 
fer of  stock,  when,  628. 
list  of  shareholders  of,  489. 
machinery  of,  taxation  of,  242. 
may  be  required  to   collect  tax   on 

security  holders,  64. 
may    be    subjected    to    income    tax, 

436. 
methods  of  taxing,  529. 
multi-state,    liability    of    shares    to 

inheritance  tax,  625. 
net  income  of,  545. 
not  citizens,  31. 

notice    to    commissioner    of   abate- 
ment of  local  taxes  on,  303. 
notice  to,  of  tax  on  stockholders,  61. 
penalty  upon,  for  failure  to  file  re- 
turn, 599. 
personal   property   of,   exempt   from 

taxation,  208. 
public   service,  additional   excise   on 

abatement  of  local  tax,  583. 

application   for   correction   of  tax, 
583. 


792 


Taxation  in  Massachusetts 


[Citations  are  to  Pages] 


Corporations  —  Continued: 

conflict    between    state    and    local 
valuations,  580. 

deductions  from   corporate  excess, 
578. 

notice  of  tax,  583. 

rate  of  taxation,  582. 

returns  by,  574. 

taxation  of,  574. 

valuation  of  shares  of,  578. 
remedy  of,  for  illegal  taxes,  596. 
re-organization  of,  taxation  of,  456. 
return  by  assessors  of  property  lo- 
cally taxable,  313. 
rules  and  regulations  respecting  tax- 
ation of,  572. 
sale   of  assets  of,  fraudulent,  when, 

595. 
ships  and  vessels  of,  taxation  of,  589. 
special  income  taxes  on,  757. 
stock  of,  exemption  from  local  tax- 
ation, 215, 

situs  of,  76. 

subject  to   inheritance   tax,   when, 
617. 
tax  on,  disputed,  as  offset  to  state 

tax,  170. 
tax  on  income  of,  not  a  direct  tax, 

14. 
tax  on,  illegal,  repayment  of,  181. 
taxable  for  real  estate,  228. 
taxation  of,  505. 
taxation  of,  on  property  in  another 

state,  37,  41. 
transfer  tax,  duties  as  to,  603. 

Corporations  and  Taxation: 

commissioner,   see   Commissioner   of 

Corporations  and  Taxation, 
department  of,   139. 

Costs: 

deposit  of,  on  foreclosure  proceeding, 
382. 

imposition   of,  constitutional,  66. 

on  abatement  by  assessors  or  county 
commissioners,  300. 

on  abatement  proceedings  in  supe- 
rior court,  299. 

on  petition  by  ten  taxpayers,  149. 

on  petition  for  abatement  of  better- 
ment assessment,  696. 

on  petition  for  abatement  of  tax, 
293. 

Counsel  Fee: 
on   petition   by   ten   taxpayers,    149. 
on  petition  for  abatement,  300. 


County  Commissioners: 

appeal  to,  from  excessive  better- 
ment, 697. 

appeal   to,   from   excessive   tax,  293. 

appointment  of  other  persons,  if 
assessors  fail  to  act,  257. 

assessment  of  cost  of  relocation  by, 
705. 

decision  of,  on  questions  of  fact 
final,    296. 

County  Tax: 
amount   of,   137. 
assessed    with    state    and    municipal 

taxes,  256. 
determination  of,  143. 
reovery  of,  from  town,  257. 

Coupons: 
receivable  for  taxes,  when,  24. 

Covenants: 
against    encumbrances,    effect    of   as 

to  taxes,  742. 
by  lessee,  to  pay  taxes,  234. 

Credit  Unions: 
when  exempt  from  taxation,  207. 

Curative  Act: 
cannot  validate  void  tax  sale,  68. 
constitutionality   of,  59,  65. 

Curtesy : 
when  subject  to  inheritance  tax,  615. 

Date:  * 

of  assessment  of  taxes,  237. 

Debt: 

arrest  for  tax  not  imprisonment  for, 

339. 
defined,  11. 

liability  of,  to  inheritance  tax,  617. 
situs  of,  75. 
tax  not  a,  11. 
taxation  of,  57,  192. 

Deceased  Person: 

assessment  of  real  estate  of,  236. 

cannot   be   assessed,   246. 

collection  from  estate  of,  344. 

income  tax  on  estate  of,  468. 

notice  of  sale  of  real  estate  of,  352. 

personal  property  of,  where  assessed, 
243. 

petition  for  abatement  of  better- 
ment on,  695. 

settlement  of  income  tax  on  estate 
of,  476. 

situs  of  property  of,  78. 


Index 


793 


[Citations  are  to  pages] 


Deceased  persons  —  Continued: 
taxable  as  owner,  when,  226. 
taxes  preferred  claim  against,  748. 

December: 

omitted  assessments  in,  304. 

Declaration : 

in  action  by  collector,  form  of,  767. 

in  action  to  recover  back  better- 
ment, form  of,  775. 

in  action  to  recover  back  tax,  form 
of,  771. 

Deductions: 
for    corporation    tax,    see    Corpora- 
tions, 
for  income   tax,   see   Income   Tax. 

Deed  of  Land  Sold  for  Taxes: 
contents  of,  359. 
effect  of  mistake  in,  360. 
form  of,  415. 
must  be  acknowledged  and  recorded, 

360. 
must  be  made  to  purchaser  at  sale, 

360. 
provisions  as  to,  357. 
to  a  city  or  town,  custody  of,  365. 
form  of,  417. 
recitals  in,  364. 
when   purchaser   fails   to   pay,   form 

of,  419. 

Deed  of  Reconveyance: 
by   city   or   town   when   land   is  re- 
deemed, form  of,  423. 

De  Facto  Officers: 
acts   of,   cannot   be   collaterally   im- 
peached, 155,  396. 

Defects: 
in  assessment,  correction  of,  65. 
in  assessment,  effect  of,  271. 
in  proceedings  for  sale,  effect  of,  347. 

Definitions : 
see  Words  and  Phrases. 

Demand : 
for  payment  of  tax,  330. 
for  payment  of  tax,  form  of,  412. 
for  tax  on  real  estate,  form  of,  415. 
may  be  dispensed  with,   when,  332. 
mortgagee  may  require  to  be  made 

to  him,  352. 
owner    may    require     at    particular 

place,  352. 

Depletion : 
deduction  for,  460. 


Deposit : 
required  at  tax  sale,  354. 

Deposits: 

defined,  516. 

in  banks,  situs  of,  77. 

in  banks,  when  "securities,"  541. 

in  national  banks,  taxation  of,  511. 

in  savings  banks,  exempt  from  tax- 
ation, 518. 

taxation  of  interest  on,  439. 

with  state  treasurer,  assessment  of. 
181. 

Depreciation: 
deduction  for,  460. 

Deputy  Collectors: 
appointment   of,   395. 

Description: 
of  real  estate  in  assessment,  275. 
of  real  estate  in  notice  of  sale,  353. 

Different  Arrangement: 
what  constitutes,  233. 

Direct  Tax: 
defined,  13. 

Directory  Provisions: 
non-compliance  with  does  not  make 
tax  illegal,  405. 

Discharge: 
of  person  arrested  for  non-payment 
of  tax,  339. 

Discontinuance: 
of     improvement     after     assessment 
collected,  130. 

Discount: 
on  inheritance  tax,  635. 
on  local  taxes  not  permitted,  283. 

Discovery: 
of    omitted    property,    what    consti- 
tutes, 305. 

Discrimination : 

against  aliens  lawful,  32. 

against  citizens  of  other  states,  30. 

against  foreign  corporations  permit- 
ted, 31. 

against  goods  from  other  states,  43. 

against  national  banks,  509. 

against  non-residents  in  practice  of 
assessors,  30. 

as  affected  by  Fourteenth  Amend- 
ment, 53. 

in   excises,   constitutionality   of,    100. 

in  practice,  effect   of,  54. 


794 


Taxation  in  Massachusetts 


Distress : 
collection  of  tax  by,  335. 
constitutionality  of,  66. 
denned,  335. 

detention,  notice  and  sale,  336. 
not  enforcement  of  lien,  335. 
notice  of  sale,  on,  form  of,  413. 
of  intangible  property,  336. 
of  stock  or  produce,  to  collect  tax 

on  land,  338. 
United  States  bonds  may  be  seized 

on,  49. 

Distribution: 
of  estate  of  deceased  person,  as  sale. 

457. 

by    executors    to    themselves    as 
trustees,  246. 

notice  of,  244. 

what  constitutes,  245. 
of  tax  among  cities  and  towns,  con- 
stitutionality of,  114. 

determination    of    amounts,    179. 

direction  of,  by  mandamus,  411. 
of  tax  on  corporations,  175. 
of  tax  on  corporations,  interest  on, 

179. 
of  tax  on  foreign  corporations,   176. 
of  tax  on  incomes,  172. 
of  tax  on  national  bank  stock,  512. 
of  tax  on  public  service  companies, 

178. 
of  tax  on  street  railway  companies, 

177. 
of  tax  on  trust  companies,  177. 

District: 
assessment  of  cost  of  improvement 

on,   116. 
special   tax   on,   constitutionality   of, 

127. 
tax,  assessment  of,  164. 
tax,   not   a   special   assessment,   117. 

Dividend : 

distinguished  from  salary,  443. 

in  liquidation,  taxation  of,  447. 

of  non-resident,  taxation  of,  uncon- 
stitutional, 97. 

of  unincorporated  association,  tax- 
ation  of,  443. 

on  stock  in  foreign  corporations,  in- 
come tax  on,  441. 

when  income  of  taxpayer,  443. 

Division : 
of   betterment,   when   land   divided, 

702. 


[Citations  are  to  pages] 

Dog: 

excise  on  ownership  of,  valid,  12. 

Doing  Business: 
defined,  490. 


Doing  Business  for  Profit: 
defined,  550. 

Domestic  Business  Corporation: 
defined,  534. 
see  also  Corporations. 

Domicile: 

evidence  of,  225. 

for  purposes  of  income  tax,  437. 

of  beneficiary  determines  liability  to 
income  tax,  472. 

of   corporation,  226. 

of   partnership,   225. 

rules  for  determining,  221. 

taxpayer  may  lawfully  change,  318. 

time  of  establishing  as  affecting  in- 
come tax,  483. 

Dooming: 
by  assessors,  constitutionality  of,  63. 
by  assessors,  in  absence  of  list,  266. 
for  purposes  of  income  tax,  491. 
for  purposes  of  inheritance  tax,  654. 

Double  Taxation: 
constitutionality  of,  56. 
defined,  55. 
effect  of,  57. 

exemption  to  prevent,  93. 
of  dividends  of  foreign  corporations 

avoided,  567. 
of  intangible  property,  73,  430. 
of  trust  property,  79. 
under  inheritance  tax  acts,  83. 

Dower: 

when  subject  to  inheritance  tax,  614. 

Drainage: 

of  swamps  and  wet  lands,  assess- 
ments for,  129,  727,  751,  753. 

Due  Process  of  Law: 
defined,  52. 

Duty: 
defined,  103. 
of  tonnage,  defined,  23. 
on  imports  and  exports,  21. 

Easement : 
considered  as  affecting  value  of  land, 

227. 
not  extinguished  by  tax  sale,  358. 
public,  taxation  of  land  subject  to, 

218. 
situs  of,  70. 


Index 


795 


[Citations  are  to  Pages] 


Educational  Institution: 
exemption  of,  200. 

Election : 
of   assessors,    150. 
of  collector,  150. 

Electric  Light  Companies: 
assessment  of  cost  of  regulating,  141. 
distribution  of  taxes  on,  178. 
public  use,  106. 

Electric  Light  Wires: 
assessment  of  cost  of  laying,  741. 

Electric  Railroad  Companies: 
returns  of,  575. 

Emigration  Agents: 
licensing  of,  33. 

Eminent  Domain: 

public  use  under,  102. 
taking   by,    under   betterment    laws, 
667. 

Employee : 

denned,  490. 
Employer: 

furnishing   of  list   of  employees  by, 
64,  489. 

Encumbrances : 
covenants  against,  742. 

Engaged   in  Business: 
denned,  550. 

Entirety,  Tenancy  by: 
application    of    inheritance    tax    to, 
615. 

Entry,  Writ  of: 

not  available  unless  possession  taken, 
377 
Equal  Protection  of  the  Law: 

effect  of  requirement,  54. 

Equitable : 
defined,  717. 

Equity: 

bill  in,  see  Bill  in  Equity. 

proceedings  in,  in  tax  matters,  408. 

redemption  in,  383. 

removal  of  cloud  upon  title  in,  385. 

suit  in,  intervention  by  collector  in, 
322. 

suit  in,  to  collect  tax,  343. 
Error,  Omission  or  Informality: 

what   constitutes,  391. 

Estate  Tax: 
defined,  606. 
not  a  direct  tax,  13. 


Estimate : 
of  betterment  assessment,  681. 

Estimated  Receipts: 

deduction   of,  by   assessors,   253. 

Estoppel: 
to  contest  validity  of  sale,  357. 

Evasion  of  Taxation: 
colorable    transfer    may    be     disre- 
garded, 49. 
formation  of  corporations  for,  83. 
former  practices,  429. 

Evidence  of  Indebtedness: 
defined,  491. 

Excess  and   Deficiency   Account: 
origin  and  disposition  of,  255. 

Excess  Takings: 

constitutionality  of,  111. 

Exchange : 
of  intangible  property,  gain  on,  tax- 
able, 456. 

Excise : 

cannot    be    levied    on    privilege    of 
ownership,  12. 

defined,   12. 

grading  of,   100. 

limitations  upon  power  to  levy,  97. 

may  apply  to  prohibited  acts,  58. 

may  apply  to  United  States  bonds. 
49. 

may  be  enforced  by  injunction,  67. 

may  be  based  on  tax-exempt  prop- 
erty, 13. 

may  be  enforced  by  lien,  68. 

may  be  graded  according  to  value  of 
property,   12. 

no  formal  act  of  assessment  neces- 
sary, 59. 

on  sales   cannot  be  applied  to   im- 
ported goods,  22. 

reasonableness  of,  99. 

taxes,    during    Revolution,    95. 

taxes,    under    Massachusetts    consti- 
tution, 94. 
84. 

territorial    jurisdiction    for    levy    of, 

what  may  be  subject  of,  58,  97. 

Executor : 

.  bound  to  file  inventory,  647. 
compensation    of,   liable   to    inherit- 
ance tax,  when,  643. 
filing  of  list  by,  260. 
foreign,     liability     for     delivery     of 
assets  to,  634. 


796 


Taxation  in  Massachusetts 


Executor  —  Continued: 
liability  of,  for  income  tax,  468. 
liability  of,  for  inheritance  tax,  627, 

644. 
liability  of,  for  local  tax,  246. 
liability   of,  for  tax  assessed  before 

appointment,  243. 
provisions  as  to  income  tax,  475. 
return   of  bank  stock  held  by,   180. 
situs  of  property  in  hands  of,  78. 
See  also  Fiduciary. 
Exemptions : 

age,   infirmity   and   poverty,  210. 

agreement   for   void,  216. 

assignability   of,   28. 

associations  of  veterans,  203. 

bonds  of  state,  213. 

bonds  of  United  States,  213. 

cemeteries,  206. 

charitable  institutions,  197. 

children,  209. 

churches,  205. 

claim  of,  strictly  construed,  19. 

clothing,   furniture   and  tools,  210. 

constitutionality  of,  194. 

constitutionality    of,   conditional,  94, 

99. 
contract    protected    by    constitution, 

26. 
co-operative  banks,  214,  521. 
credit  unions,  207. 
forest  lands,  214. 
fowls,  211. 

fraternal  benefit  societies,  204. 
fraternity  houses,  196. 
from  betterment  assessments,  675. 
from  distress,  335. 
from  income  tax,  467. 
from  inheritance  tax,  619. 
from    street    sprinkling    assessments, 

146. 
from  taxation,  history  of,  193. 
horses  and  cattle,  young,  211. 
horticultural  societies,  203. 
household    furniture,  210. 
illegal   conduct  bars,   194. 
intangible  property  otherwise  taxed, 

214. 
literary  and  educational  institutions, 

197. 
militia  units,  203. 
municipal  bonds,   213. 
municipal  corporations,  218. 
national  bank  stock,  513. 
not   granted   by    implication,   27. 
not  violation  of  rights  of  town,   18. 
pension  associations,  204. 


[Citations  are  to  pages] 

Exemptions  —  Continued: 

personal    property    in    other    states, 


210. 

power  of  legislature  to  grant,  91. 
presumption  against,   194. 
property  devoted  to  public  use,  217. 
property  of  commonwealth,  196. 
property  of  United  States,  196. 
property  taxed  on  income,  214. 
public  service    companies,   218. 
railroad  companies,  218,  740. 
reciprocal,  of  non-resident  decedents, 
•  626. 

religious  organizations,  205. 
repeal  of,  as  breach  of  contract,  26. 
reserved    right    to    alter,    amend    or 

repeal,  29. 
retirement  associations,  204. 
savings  deposits,  214,  516,  518. 
soldiers  and  sailors,  212. 
special  statutes  and  charters,  215. 
stock  in  corporations,  215. 
unconstitutional,  not  a  contract,  29. 
under   colonial  laws,    198. 
unincorporated   associations,   214. 
veterans,  212. 
water  companies,  207. 
women,  209. 

Expenses   and   Costs: 

of  trial  on  abatement,  what  con- 
stitute, 300. 

Export: 
defined,  21. 

goods  prepared  for,  when  taxable,  22. 
tax  on,  forbidden  states,  21. 

Express  Company: 
taxable  by  unit  system,  71. 

Fair  Cash  Value: 
defined,  267. 
of  national  bank  stock,  510. 

Faith  and  Credit: 
obligation  to  give,  to  acts  of  other 
state,  31. 

Farm  Products: 

marketing,  held  public  use,  106. 

Farming  Utensils: 
exemption  of,  210. 

Federal  Farm  Loan  Bonds: 
not  taxable  by  state,  440. 

Federal  Income  Tax: 

construction  of,  as  affecting  state 
income  tax,  434. 

return,  basis  of  income  tax  on  cor- 
porations, 545. 


Index 


797 


[Citations 

Federal   Land   Banks: 

bonds  of  not  taxable  by  state,  440. 

Fees: 

disposition  of,  329. 

for  furnishing  statement  of  liens, 
334. 

for  payment  to  collector,  377. 

for  redemption  do  not  carry  interest 
376. 

for  summons,  332. 

of  collector.  328. 

of  land  court,  on  foreclosure  pro- 
ceedings, 382. 

-of  sheriff  collecting  taxes,  393. 

on  redemption  from  tax  sale,  374. 

to  be  added  to  tax  in  case  of  taking, 
366. 

Ferry: 
license  fee,  not  duty  of  tonnage,  23. 
municipal,  a  public  use,  105. 

Fiduciary: 
exemption    of    intangible     property 

held  by,  215. 
income  tax  returns  by,  482. 
income  tax  upon,  437. 
personal  liability  for  income  tax,  494. 
remedy  of,  for  excessive  tax,  404. 
See   also   Administrator,  Executor, 
Guardian  and  Trustee. 

Fifty  Per  Cent  Penalty: 

imposition  of,  287. 

Finance : 
commissioner  of,  election  of,  151. 
county,  143. 
municipal,  159. 
state,  142. 

Fire: 
rebuilding  after,  not  public  use,  104. 

Fire  District: 
taxation  by,  162. 

Fixtures : 
not  taxed  as  real  estate,  191. 

Foreclosure : 
of  tax  titles,  379. 
petition   for,  380. 
practice  and  procedure  in,  380,  383. 

Foreign  Corporations: 
defined,  535. 
See  also  Corporations. 

Forest  Lands: 
classified,  exemption  of,  214. 
commutation   tax,   427. 


are  to  pages] 

Forest  Lands  —  Continued: 
.product  tax,  427. 
taxation  of,  426. 

Forfeiture: 
of  goods  used  in  evading  tax,  66. 
of  land  for  failure  to  enter  on  tax 
list,  63. 

Forms : 
appendix  of,  760. 

in  proceedings  for  collection,  412. 
of  lists,  to  be  furnished  by  assessors. 
261. 

Fowls: 
domestic,  exemption  of,  211. 

Franchise: 

corporate,  tax  on,  574. 

corporate,  tax  on  an  excise,  14. 

grant  of,  not  implied  exemption 
from  taxation,  27. 

may  be  subject  of  excise,  98. 

sale  or  lease  of,  as  affecting  exemp- 
tion, 28. 

situs  of,  77. 

tax  on,  may  apply  to  United  States 
bonds,  49. 

to  engage  in  interstate  commerce 
taxable,  44. 

valuation  of,  7k 

Fraternal  Benefit  Orders: 

exemption  of,  204. 

Front  Foot  Rule: 
constitutionality  of,   125,   126. 
in  street  sprinkling  assessments,  145. 

Furniture: 
household,  exemption  of,  210. 

Future  Interest: 

deposit  or  bond  for  payment  of  tax 

on,  642. 
payment  of  inheritance  tax  on,  640. 
valuation  of,  636. 

Gas: 

supply  of  a  public  use,  106. 

Gas  Companies: 
assessment  of  cost  of  regulation,  141. 
distribution  of  tax  on,   178. 

Gas  Pipes: 
assessment  of  cost  of  laying,  741. 
See  also  Pipes. 

General   Benefits : 
defined,  672. 


798 


Taxation  in  Massachusetts 


[Citations  are  to  pages] 


General  Property  Tax: 
denned,  11. 

Gift: 

in  contemplation   of  death,   liability 

to  inheritance  tax,  623. 
taxation  of  income  from  sale  of,  457. 
when  subject  to  inheritance  tax,  615. 

Good  Will: 
of  corporations,  taxation  of,  544. 

Grand  Army  Post: 
exemption  of  property  of,  203. 
not  a  public  use,  108. 

Gratuities: 
not  a  public  use,  107. 

Great  Britain: 
money  bills  in,  101. 

Gross  Income: 
defined,  458. 

Gross   Receipts: 
as  measure  of  tax,  37,  45. 
from    interstate    commerce,    taxation 

of,  37,  45. 
tax  on  not  a  direct  tax,  14. 

Guardians: 
provisions  as  to  income  tax,  475. 
return  of  bank  stock  by,  180. 
where  taxed,  238. 

Gypsy  Moths: 
assessment  for  exterminating,  732. 

Hall: 
for  public  meetings  a  public  use,  104. 

Harbor  Master's  Fee: 
not  a  duty  of  tonnage,  23. 

Hearing: 
constitutional  right  to,  62. 
not  necessarily   in  court,  62. 
on  apportionment  of  public  burdens 

not  required,   115. 
on  special  assessment,  right  to,   128. 
what  constitutes,  62,   128. 

Heirs  of   Deceased   Person: 

assessment  of  real   estate   to,  228. 
demand  for  tax  upon,  331. 

Highways: 
assessment  for  cost  of,  706. 
compulsory  work  on,  10. 
public  use,  104. 

Historical  Landmarks: 
preservation  of,  a  public  use,  111. 


Holding  Companies: 
liability  to  income  tax,  445. 

Homes  for  Wage  Earners: 
providing  not  a  public  use,  111. 

House  of  Representatives: 
tax  acts  originate  in,  101. 

Household  Furniture: 
exemption  of,  210. 
valuation  of,  269. 

Horses: 

young,  exemption  of,  from  taxation, 
211. 

Horticultural  Societies: 
exemption  of,  203. 

Ice  Plant:    ~ 

municipal,   held   public   use,    106. 

Immigrants: 
tax  on,  not  an  inspection  fee,  22. 

Imports: 
can  be  taxed  by  state,  when,  21. 
defined,  21. 
duties    on,    under    province    charter, 

95. 
license  fee  for  selling  invalid,  35. 

Income: 

accruing    after    death    of    decedent, 

not  liable  to  inheritance  tax,  637. 
derived  from  property,  what  consti- 
tutes, 436. 
from  investments  outside  the  state, 

71. 
includes   gain    from    sale   of    capital 

assets,  455. 
inheritance  tax  not  payable  out  of, 

635. 
local  tax  chargeable  to,  236.  . 
net,  of  corporation,  what  constitutes, 

545. 
of  corporations,  how  taxable,  436. 
of   corporations,   rate    of    tax    upon, 

548. 
of  foreign  corporations,  taxation  of, 

560. 
what   constitutes,  434. 

Income  Tax: 
abatement  of,  by  commissioner,  494. 
accrual  basis  authorized,  465. 
allowance  for  dependents,  464. 
amendment   to   constitution   author- 
ized, 433. 
appeal  to  Board  of  Appeal,  496. 
appeal  to  superior  court,  498. 


Index 


799 


[Citations  are  to  pages] 


Inoome  Tax  —  Continued: 

applicable  only  to  income,  434. 

application   of   commissioner  to   ap- 
point  administrator,   747. 

assessment    of     persons    who    have 
filed  returns,  491. 

assessment  of  persons  who  have  not 
filed  returns,  491  . 

basis  for  determining  gain  or  loss  on 
capital  assets,  466. 

claim  of  exemption  for  beneficiary, 
474. 

collection   of,  493. 

complaint  for  refusal  to  abate,  form 
of,  772. 

deduction  for  income  attributable  to 
capital,  463. 

deduction    for    interest    on    business 
debts,  461. 

deduction  for  loss  and  destruction  of 
capital  assets,  462. 

deduction  for  loss  on  bad  debts,  462. 

deduction  for  taxes  paid,  461. 

deduction  from  business  income,  459. 

determination    of    business    income, 
458. 

direct  tax  or  excise,  14,  431. 

distribution  of  capital  not  subject  to, 
446. 

distribution  of  proceeds,  172. 

dividends   on   stock   in   foreign   cor- 
porations, 441. 

effect   of   partial   unconstitutionality, 
501. 

establishment    of    partners'   exemp- 
tions, 478. 

estates  held  in  trust,  470. 

estates    of   deceased    persons,    468. 

exemptions  from,  467. 

extension  of  time  for  filing  returns, 
486. 

fiduciary   personally    liable    for,   494. 

fiduciary  returns,  482. 

gains  from  sales  of  intangibles,  455. 

information  at  the  source,  489. 

intangible   personal   property,  436. 

interest  deduction,  447. 

interest  from  bonds,  notes  and  other 
debts,  437. 

interest  on  overdue,  494. 

interstate    commerce,    income    from 
subject  to,  46. 

inventory,  how  taken,  466. 

limited  by  federal  constitution,  434. 

loss  of  exemption  by  failure  to  re- 
turn income,  500. 


Income  Tax  —  Continued: 

mandamus  to  compel  filing  of  re- 
turn, 488. 

mortgage  interest  exempt  from,  438. 

non-resident  individuals,  85. 

non-resident  trustees,  473. 

notice  of,  450. 

notice  of  requirements  of,  484. 

omitted  assessment  of,  492. 

omitted  returns,  485. 

origin  and  purpose  of,  428. 

partnerships,   assessment   of,  476. 

partnerships  doing  business  outside 
the  state,  479. 

partnerships,  procedural  provisions, 
479. 

pawnbrokers,   438. 

penalties,   502. 

persons  subject  to,  436. 

privacy  of  returns,  488. 

professions,  employments,  trade  or 
business,  451. 

property  outside  the  state,  85. 

property  received  as  income,  437. 

proportionality,  requirement  of,  91, 
435. 

rate  of,  in  discretion  of  legislature, 
435. 

returns  of  income,  480. 

returns,  preparation  of,  484. 

rules  and  regulations  of  commis- 
sioner, 493. 

salaries  of  federal  office  holders,  433. 

savings  deposits  exempt  from,  438, 
439. 

school  fund  paid  from,  664. 

securities  held  in  pledge  or  on  mar- 
gin, 446. 

settlement  of  taxes  on  fiduciary,  476. 

special,  on  corporations,  757. 

special,  on  individuals,  758. 

statutory   remedies  exclusive,  499. 

stock  dividends,  442. 

supplementary  returns,  485. 

territorial  jurisdiction,  84. 

time  as  of  when  liability  is  fixed, 
483. 

trust  companies,  on  property  held  in 
trust,  475. 

unincorporated  associations,  443,  457. 

uniformity  required,  433. 

verification   of  returns,  486. 

Information: 
against  corporation,  596. 

Inhabitant: 
defined,  221,  436. 


800 


Taxation  in  Massachusetts 


[Citations  are  to  pages] 


Inheritance  Tax: 

abatement  of,  for  illegality,  651. 

alteration  of  determination  of  value, 
650. 

application  for  repayment,  181. 

application  for  repayment,  form  of, 
762. 

application  of  commissioner  to  ap- 
point administrator,  747. 

assessment  and  certification  of,  651. 

chargeable  to  capital,  635. 

collection  of,  656,  657. 

constitutionality   of,  606. 

curtesy,  application  to,  615. 

deductions  for  other  taxes  and  ex- 
penses, 637. 

delivery  of  assets  to  foreign  execu- 
tor, 634. 

deposit  or  bond  for  payment  on 
future  interest,  642. 

determination  of  value,  649. 

discrimination  against  aliens,  32. 

dooming,  on  refusal  of  information, 
654. 

dower,  application  to,  615. 

enforcement  of  lien  on  real  estate, 
656. 

examination  on  oath  of  persons 
having  information,  653. 

excessive  compensation  of  executor, 
643. 

executor,  administrator  or  trustee 
liable  for,  644. 

exemptions  from,  619. 

future  interest,  payment  of,  631,  640. 

gifts  in  contemplation  of  death,  615, 
623. 

history  of,  605. 

insurance  policies,  615. 

interest   and   discount,  635. 

inventory  and  appraisal,  647. 

jurisdiction  of  probate  court,  654. 

legacy  charged  on  real  estate,  645. 

lien  for,  633. 

non-resident  decedents,  616. 

not  direct  tax,  13,  14. 

not  retrospective,  660. 

papers  not  open  to  public  inspection, 
660. 

penalties,  660. 

persons  liable  for,  627. 

petition  to  probate  court,  form  of, 
773. 

powers  of  appointment,  621. 

probate  accounts,  not  allowed  until 
paid,  648. 

property  subject  to,  616. 


Inheritance  Tax  —  Continued: 
provision  for  payment  of  not  subject 

to,  646. 
reciprocal  exemption  of  non-resident 

decedents,  626. 
repayment  of  illegal,  181. 
repayment  of,  on  property  returned, 

646. 
sale  of  real  estate  for  payment  of, 

647. 
settlement  of,  642. 
shares    in    multi-state    corporations, 

625. 
situs  for  purpose  of,  79. 
special  additional,  759. 
subjects  and  rates,  608. 
survivorship,  615. 
time  of  payment,  627. 
transactions  subject  to,  613. 
United  States  bonds  subject  to,  49. 
valuation  for  purpose  of,  636,  649. 

Injunction: 
against  appropriation  for  illegal  pur- 
pose, 148. 
against  collection   of  tax,  408. 
against   foreign   corporation,  394. 
against  non-resident,  394. 
against  tax  sale,  386. 
to  enforce  payment  of  excise,  67. 

Insane  Asylum: 
exemption  of,  198,  202. 

Insect  Pests: 
assessments    for    exterminating,    732. 

Insolvent  Estates: 
collection  of  taxes  from,  344. 
of  deceased  persons,  taxes  preferred 

claim,  748. 
taxes  preferred  claim  against,  749. 

Inspection  Fee: 
amount  of  limited  by  cost  of  inspec- 
tion, 9,  22. 
distinguished  from  tax,  8. 
not  a  tax  on  imports,  22. 
tax  may  be  called,  10. 

Inspection  of  Books  and  Papers: 

of  corporations,  570,  591. 
of  income  taxpayers,  486. 
of  insurance  companies,  527. 
of  taxpayers  generally,  63. 

Insurance   Companies: 
agents  of,  licensing,  33. 
assessment  of  taxes  on,  528. 
collection  of  taxes  on,  528. 


Index 


801 


[Citations  are  to  pages] 


Insurance  Companies  —  Continued: 
determination    of    amount    of    pre- 
miums tax,  526. 
foreign  life,  retaliatory  tax  on,  523. 
inspection  of  books  of,  527. 
life,  taxation  of,  521. 
mutual,  taxation  of,  525. 
other  than  life,  taxation  of,  524. 
penalty    for    failure    to    file    return, 

527. 
returns  by,  527. 
savings  bank,  taxation  of,  520. 
situs  of  loans  on  policies,  76. 
tax  on  an  excise,  14. 
taxation  of,  84,  521,  742. 

Insurance,   Contract  of: 
defined,  525. 

Insurance   Policy: 

dividends  on  not  taxable,  442. 

inheritance  tax  on,  615. 

taxable  as  an  annuity  when,  451. 
Intangible    Property: 

difficulties  in  taxation  of,  429. 

gains  from  sale  of,  taxation  of,  455. 

income   from,   not   taxable   as  busi- 
ness income,  458. 

income  from,  taxation  of,  436. 

seizure  of,  on  distress,  336. 

situs  of,  73. 

subject  to  taxation,  57. 

taxed  on  income  not  taxed  as  prop- 
erty, 214. 

transfer  of,  taxation  of,  600. 
Interest: 

deduction  of,  from  income  tax,  447, 
461. 

from   bank   deposits,    taxable   when, 
439. 

from  bonds,  notes  and  other  debts, 
income  tax  on,  437. 

on  abated  income  tax,  497. 

on  abated  local  tax,  300,  301. 

on  betterment  assessment,  700. 

on  corporation  taxes,  593. 

on  corporation  taxes,  distribution  of, 
179. 

on  fees  for  redemption,  376. 

on  income  tax,  494. 

on  inheritance  tax,  635. 

on  insurance   company  tax,  528. 

on  local  property  tax,  282. 

on  national  bank  stock  tax,  511. 

on  state  bonds,  deduction   of  taxes 
from,  24. 

requirement   of  constitutional,  66. 

to  purchaser  at  invalid  sale,  360. 


Interpleader,  Bill  of: 
between  two  towns  will  not  lie,  409. 

Interstate   Commerce: 

agency  for,  36. 

branch  store,  36. 

bridge  used  for,  43. 

cab  service,  33. 

canal  toll,  34. 

consolidated  corporation,  37. 

dealers,  35. 

domestic  corporations,  36. 

exchange  brokers,  33. 

foreign    corporations,   38. 

franchise   tax   measured   by   capital 
stock,  27. 

franchise  to  engage  in,  44. 

goods  brought  in  from  another  state, 
43. 

goods  in  transit,  44. 

goods  prepared  for  export,  44. 

gross  receipts,  37. 

income  derived  from,  46. 

insurance  agents,  33. 

license  for,  35. 

local  business  distinguished  from,  39. 

local  business  interwoven  with,  42. 

log  boom  charge,  34. 

motor  vehicle  license,  34. 

not  imports  or  exports,  21. 

passengers,  35. 

peddlers,  35. 

privilege  of,  33,  38. 

property  used  in,  43. 

quarantine  fee,  36. 

receipts  derived  from,  37,  45. 

stock  transfer,  33. 

taxation  of,  33. 

telegraph  pole  fee,  34. 

travelling  salesmen,  35  . 

vessels  used  for,  43. 

wharfage  fee,  34. 

what  constitutes,  33. 

Intoxicating    Liquors  : 
taxable  as  property,  190, 
See   also   Liquor,   Intoxicating. 

Inventory: 
filing  of,  for  inheritance  tax,  647. 
taking  of,  for  income  tax,  466. 
to  be  sent  to  commissioner  by  regis- 
ter, 750. 

Joint  Owners: 
assessment   and    collection    of   taxes 

on,  366. 
personal    property   of,   where   taxed, 

246. 


802 


Taxation  in  Massachusetts 


[Citations  are  to  pages] 


Joint  Tenancy: 
inheritance  tax  on  r  urvivorship,  615. 
lien  for  taxes  paid,  391. 

Judiciary : 

cannot  levy  taxes,  15. 

Jury  Trial: 
no  right  to,  on  general  tax,  62. 
no  right  to,   on  special   assessment, 

128. 
on  proceeding  for  foreclosure  of  tax 
title,  382. 

Laborers : 

on  public  works,  regulation  of  wages 
and  hours  of,  107. 

Laches : 
bars  petition  for  certiorari,  688. 
bars  ten  taxpayers'  petition,  149. 

Land  Court: 

foreclosure  of  tax  title  in,  379,  747. 

Lease : 

provisions  for  taxes  in,  233. 

Legacy  Tax: 
defined,  606. 

Legislature: 
has  power  of  taxation,  15. 

Lessee : 

contribution    to    betterment    assess- 
ment, 697. 
liable  for  tax,  when,  227. 
of  corporation  liable  for  tax,  594. 

Lessor : 
obligation  of,  to  pay  tax,  234. 

Levy: 

time  of  making,  331. 
without    demand,    authorized    when, 
332. 

License : 
cannot  be  required  for  selling  goods 

from  other  state,  35. 
may  be  taxation  or  regulation,  7. 
payment  of  tax  not,  8. 

Lien: 

for  betterment  assessments,  684. 

for  betterment  assessments,  duration 
of,  699. 

for  betterment  assessments,  encum- 
brance, 745. 

for  cost  of  abating  nuisance,  129. 

for  inheritance  tax,  633. 

for  inheritance  tax,  enforcement  of, 
656. 


Lien  —  Continued: 
for  re-assessed  betterment,  703. 
for  re-assessed  tax,  307. 
for  sewer  assessments,  724. 
for   sidewalk   assessments,   724. 
for  taxes  as  encumbrance,  743. 
for   taxes,   extent    and    duration   of, 

349. 
for  taxes,  may  be  assigned,  17. 
of  co-tenants,  391. 
of   person   paying   tax   not   assessed 

to  him,  372. 
on  land  itself,  350. 
on  national  bank  stock,  511. 
statement  of,  by  collector,  334. 
to  enforce  excise,  constitutional,  68. 
to  enforce  tax,  constitutional,  67. 

Life  Estate: 
valuation    of,     for    inheritance   tax, 
636. 

Life  Insurance  Company: 
defined,  522. 
See   also    Insurance    Companies. 

Life  Tenant: 

cannot  acquire  tax  title,  357. 
obligation  of,  to  pay  taxes,  235. 

Lighting  of  Streets: 
constitutes  a  public  use,   104. 

Like    Exemption : 
denned,  627. 

Limitations : 

to  action  by  collector,  342. 

to  action  to  recover  back  a  tax,  400. 

to  petition  for  abatement  of  better- 
ment, 692,  693,  694. 

to  petition  for  abatement  of  corpora- 
tion tax,  573,  583,  593,  596. 

to  petition  for  abatement  of  income 
tax,  495,  496,  498. 

to  petition  for  abatement  of  in- 
heritance tax,  651. 

to  petition  for  abatement  of  local 
tax,  282,  293,  297. 

Liquor,  Intoxicating: 

excise  on  removal  of  a  property  tax, 
12. 

license,  whether  a  tax  or  regula- 
tion, 7. 

tax  on  sale,  not  necessarily  license 
to  sell,  8. 

taxable  as  property,   190. 

List  of  Taxable  Property: 
constitutionality  of  dooming  on  fail- 
ure to  file,  63. 


Index 


803 


[Citations  are  to  pages] 


List  of  Taxable  Property— Continued: 

effect  of  failure  to  file,  287. 

forms  to  be  furnished  by  assessors, 
261. 

must  be  on  commissioner's  forms, 
290. 

necessity  of,  for  abatement  by  as- 
sessors, 287. 

necessity  of,  for  abatement  by 
county  commissioners,  296. 

not  open  to  public  inspection,  262. 

notice  to  bring  in,  258. 

of  corporation,  292. 

of  national  bank,  512. 

of  property  in  storage  warehouse, 
263. 

penalty  for  filing  false,  318. 

reasonable  excuse  for  failure  to  file, 
266. 

to  be  taken  as  true,  264. 

verification  of,  by  oath  of  taxpayer, 
261. 

what  constitutes,  260. 

wilful  omission  by  charitable  insti- 
tution, 197,  202. 

Literary  Institution: 
defined,  199. 

Local  Benefits: 
defined,  672. 

Local  Business: 
distinguished    from    interstate    com- 
merce, 39. 

Log  Boom: 
charge  for  use  of  not  tax,  5,  34. 

Machinery: 

assessed  separate  from  buildings,  243. 

certain,  formerly  exempt,  195. 

employed  in  manufacture,  what  con- 
stitutes, 242. 

in. other  states  not  taxable,  210. 

not  taxed  as  real  estate,  277. 

taxation  of,  as  personal  property, 
191. 

value  of,  deductions  in  corporation 
taxes,  539,  557. 

where  taxed,  241. 

Majority: 
assessors  may  act  by,  154. 

Mandamus : 
in  tax  matters  generally,  409. 
to  compel  abatement  of  tax,  298. 
to  compel  acceptance  of  tax,  410. 
to  compel  assessment  of  tax,  26,  410. 


Mandamus  —  Continued: 

to  compel  filing  of  income  tax  re- 
turn, 488. 

to  compel  proper  distribution  of  tax, 
411. 

to  prevent  expenditure  for  illegal 
purpose,   150. 

Margin : 
stocks  held  on,  how  taxed,  446. 

Market  House: 
constitutes  a  public  use,  104. 

Market  Value: 
meaning  of,  267. 

Massachusetts  Bay  Company: 
charter  of,  86. 

Massachusetts,   Commonwealth   of: 
see   Commonwealth. 

Massachusetts,  Constitution  of: 
see   Constitution. 

Massachusetts  Hospital  Life  Insurance 
Co: 
deposits  in  exempt  from  income  tax, 

438. 
taxation  of,  520. 

Meadows: 
compulsory    joint    drainage    of,    129, 
751. 

Memorial: 

war,  a  public  use,  108. 

Merchandise : 
imported,  taxation  of,  43. 
in  other  states,  not  taxable,  210. 
in  transit,  taxation  of,  44. 
prepared  for  export,  taxation  of,  44. 

Military  Duty: 
assessors    to    enroll    persons   subject 
to,  142. 

Militia  Unit: 
exempt  from  taxation,  203. 

Mill  Privilege: 
taxation  of,  191. 

Ministerial  Fund: 
taxation  of,  226,  230. 

Minor: 
domicile  of,  223. 
exemption  of,  209. 
obligation  as  to  income  tax,  437. 
See  also  Guardian. 


804 


Taxation  in  Massachusetts 


[Citations 

Misnomer: 
does  not  invalidate  assessment,  332. 
does  not  invalidate  betterment,  692. 
does  not  invalidate  tax  deed,  359. 
does      not      violate      constitutional 
rights,    59. 

Mistake : 
effect  of,  in  tax  sale,  348. 
of  name,  see  Misnomer, 
payment  of  taxes  by,  373. 

Mobilia  Sequuntur  Personam: 
principle  of,  as  applied  to  taxation, 
71,  237. 

Money: 

■    at  interest,  taxation   of,   192,  437. 

constitutes    tangible    personal    prop- 
erty, 73. 

of  non-residents  not  taxable,   189. 

tax  must  be  paid  in,  323. 

Money  Bill: 
what  constitutes,   100. 

Moneyed   Capital : 
what  constitutes,  508. 

Money's   Worth: 
what  constitutes,  615. 

Mortgage : 
conditions    in,    as    to    payment    of 

taxes,  369. 
extinguished  by  tax  sale,  350. 
held  by  savings  bank,  deducted  from 

franchise  tax,  516. 
interest   on,   subject   to   income   tax 

when,  438,  440. 
of   building,   taxable   as  real   estate, 

190. 
of    personal    property,    taxation    of, 

250. 
of  real  estate,  taxation  of,  226,  230, 

231,  232. 
situs  of,  75,  81. 
value    of,    deducted    in    inheritance 

tax,  618. 
value    of,    deducted    under   corpora- 
tion tax,  540,  542. 

Mortgage   Bonds: 
taxation   of  interest   on,  438,   440. 

Mortgaged  Land: 
taxation  of,  226,  230,  231,  232. 

Mortgagee : 
cannot  acquire  tax  title,  357. 
deemed  joint  owner  with  mortgagor 
252. 


are  to  pages] 

Mortgagee  —  Continued: 

may    file    statement    of    amount    of 

mortgage,  263. 
may  pay  tax  and  add  to  mortgage, 

368. 
may  require  demand  to  be  made  on 

him,  352. 
receipt  by  collector  to,  form  of,  424. 
rights  of,  against  mortgagor,  368. 
rights  of  successive,  370. 

Mortgagor: 
cannot  acquire  tax  title,  357. 
deemed  joint  owner  with  mortgagee, 

232. 
may    file    statement    of    amount    of 

mortgage,  263. 
rights  of,  against  mortgagee,  368. 

Moths,  Gypsy  and  Brown  Tail: 
assessments  for  exterminating,  732. 

Motor  Vehicle  Fee: 
not  tax  on  interstate  commerce,  34. 

Mulct  Tax: 
constitutionality  of,  10. 

Multi-state  Corporation: 
liability  of  shares  in,  to  inheritance 

tax,  625. 
situs  of  shares  of,  82. 

Municipal  Bonds: 

exemption  of  from  taxation,  213. 

exemption  of  income  from  taxation, 
438. 

of  municipalities  in  other  states  tax- 
able, 31. 

of  municipalities  in  territories  not 
taxable,  49. 

Municipal   Corporation: 
abolition  of,  to  escape  debts,  26. 
apportionment    of    burdens    among, 

114. 
assessment  on,  of  cost  of  regulating 

public  service  enterprises,   141. 
assessment  on,  of  expense  of  audit- 
ing accounts,   162. 
authority   to   levy   taxes   limited   to 

specified   purposes,   112, 
bequests  to,  exempt  from  inheritance 

tax,  620. 
cannot  be  wholly  deprived  of  taxing 

power,  18. 
cannot   complain   of   change    in   tax 

laws,  69. 
change    of    name    of,    as    affecting 

notice  of  sale,  353. 


Index 


805 


[Citations  are  to  pages] 


Municipal  Corporation  —  Continued: 
collection  of  taxes  on  land  held  by, 

373. 
distribution  of  taxes  to,  114. 
exemption  of  property  of,  218. 
grant  of  taxing  power  to,  not  a  con- 
tract, 18. 
implied  grant  of  power  of  taxation 

to,  17. 
judgment  against,  may  be  enforced 

against  inhabitants,  410. 
land    bought    by,    at    tax   sale,    dis- 
position of,  386. 
liability  of,  in  action  to  recover  back 

tax,  401. 
management    of    lands    bought    by, 

365. 
may  be  given  power  of  taxation,  17. 
may   determine   whether   to   sell   or 

take,   393. 
may  invest  idle  funds,  107. 
may  rent  property  not  needed,  106. 
not   liable   for   acts   of   assessors   or 

collector,  408. 
payment  in  lieu  of  taxes  by,  218. 
power  of  taxation   not  inherent  in, 

17. 
private    and    proprietary    rights    of, 

115. 
reimbursement  of,  for  loss  of  taxes 

on  public  institutions,  171. 
repeal  of  betterment  act  violates  no 

rights  of,  124. 
required  to  levy  tax  to  pay  debts,  25. 
revenue  of,  137. 

rights  of  local  self-government,  115. 
sale  of  lands  held  by,  388. 
support  of  state  institutions  by,  114. 
taking  of  land  by,  for  non-payment 

of  taxes,  365. 
to  purchase  at  tax  sale,  when,  363. 
to  receive  commission  for  collecting 

national  bank  stock  tax,  513. 

Name: 

mistake  in,  see  Misnomer 
of  tax  not  controlling,  4. 

National  Bank: 

collection  of  tax  on,  511. 

establishment  of  exemption  of  stock- 
holders, 514. 

interest  in  savings  departments  tax- 
able, 439. 

in  what  place  taxable,  510. 

petition  for  abatement  by,  511. 

protected  from  discriminatory  tax- 
ation, 509. 


National  Bank — Continued: 

return  by  fiduciary  or  partnership 
holding  stock  in,  180. 

shares  in,  held  by  non-residents, 
omitted  from  valuation,  252. 

shares  in,  not  subject  to  district 
taxes,  163. 

shares  in,  of  charitable  institutions, 
exemption  of,  515. 

shares  in,  of  savings  banks,  exemp- 
tion of,  514. 

shares  in,  taxation  of,  505. 

shares  in,  valuation  of,  510. 

taxation  of  deposits  in,  511. 

taxation  of  real  estate  of,  511. 

Natural  Right: 
excessive  tax  upon,  validity  of,  8. 
not  a  commodity  subject  to  excise, 
97. 

Necessities  of   Life: 

furnishing   of,   as   public   use,    111. 
Necessity: 

of  improvement,  no  right  to  a  hear- 
ing on,   129. 

Negligence : 

assessors  not  liable  for,  316. 

of    assessors    or     collector,    munici- 
pality not  liable  for,  408. 
Net   Income: 

defined,  545. 

Newspaper: 

publication  in,  what  constitutes,  320. 
Non-Resident: 
application  of  inheritance  tax  to,  616, 
bound    to    bring    in    list    of    taxable 

property,   289. 
collection  of  taxes  on,  86. 
demand  for  tax  upon,  331. 
discrimination     against,     in     income 

taxes,  85. 
discrimination   against,   what   consti- 
tutes,  30. 
intangible,   property   of   not   taxable, 

189. 
liable  to  arrest  for  non-payment  of 

taxes,  339. 
may     contest     liability     in     federal 

court,  499. 
not  subject  to  income  tax,  454. 
purchasing  tax  title  to  appoint  agent, 

362. 
restrained  from  doing  business  until 

tax  is  paid,  394. 
•  trustee,  taxation  of,  473. 
valuation  of  estate  of,  638. 


806 


Taxation  in  Massachusetts 


[Citations  are  to  pages] 


Notary  Public: 
may  administer  oath  as  to  truth  of 
list,  261. 

Note,  Promissory: 
situs  of,  for  taxation,  75. 
taxation  of  interest  on,  437. 

Notice: 
of  assessment,  a  constitutional  right, 

60. 
of  decision  on  abatement,  293. 
of  distribution  of  estate,  244. 
of  filing  income  tax  returns,  484. 
of  foreclosure  of  tax  title,  380. 
of    intention    to    take    real    estate, 

form  of,  420. 
of  petition  for  foreclosure,  recording 

of,  382. 
of  poll  tax  not  required,  188. 
of    request    for    apportionment,    310. 
of  sale  of  distrained  property,  form 

of,  413. 
of  sale  of  real  estate,  form  of,  415. 
of  sale  of  real  estate,  inaccuracy  in, 

353. 
of  sewer  assessment,  710. 
of  tax,  sending  out  of,  323. 
personal,  not  required,  61. 
to    commissioner    of    abatement    of 

tax  on  corporation,  303. 
to  taxpayers  to  bring  in  list,  258. 
what    constitutes    constitutional,    60. 
when    tax    not    dependent    on    valu- 
ation not  required,  61. 
when    tax    title    is    deemed    invalid, 

form  of,  425. 

Nuisance : 

compulsorv  abatement  of  not  a  tax, 
24. 

Oath: 

of  assessors,  156. 

of   assessors   to   truth    of   valuation, 

279. 
of  poor  debtor,  by  person  arrested, 

339. 
to   truth    of   list,  how   administered, 

261. 
to  truth  of  list,  mandatory,  262. 

Obsolescence: 
deduction  for,  460. 

Occupant: 
real  estate  may  be  assessed  to,  227. 

Offer  of  Surrender: 
by  purchaser  at  invalid  sale,  767. 
land   assessed  for  betterment,  682. 


Oleomargarine: 
tax  on,  constitutionality  of,  8. 
tax  on,  not  a  direct  tax,  14. 

Omitted  Assessment: 
action  to  recover  back,  404. 
constitutionality   of,  65. 
of  corporation  tax,  571. 
of  income  tax,  485,  492. 
of  local  tax,  304. 

Ordinance: 
may  provide  additional  methods  of 
collection,  322. 

Original  Package: 
taxation  of  goods  in,  43. 
taxation  of  sale  of  goods  in,  35. 
when  opened  may  be  taxed,  21. 

Overlay: 

in   assessment  authorized,   255. 

Owner: 
defined,  227,  356. 

liable   for  tax   on  leased   land,  235. 
naming  of  one,  sufficient,  366. 
unknown,  taxation  of  land  to,  227. 

Papers: 

of  deceased  collector,  to  be  returned, 

325. 
private,  right  to  inspect,  63. 

right    to    inspect    for    income    tax, 

486. 
right    to    inspect    for    inheritance 

tax,  653. 
right   to    inspect    for   tax    on   cor- 
porations, 591. 
relating    to    inheritance    tax    to    be 
private,  660. 

Parcels,  Separate: 
must  be   separately   assessed,  276. 
must  be  separately  sold,  350. 
must  be  separately  valued,  276. 

Park: 

betterment  may  be  levied  for,  122. 
building  may  be  constructed  in,  131. 

Parsonage: 
not  exempt  from  taxation,  205. 

Partnership : 

cannot  be  subject  of  excise,  97. 

dissolution  of,  249. 

distinguished  from  trust,  249. 

domicile  of,  225. 

establishment  of  partners'  exemp- 
tions, 478. 

foreign,  taxation  of  resident  part' 
ners,  479. 


Index 


807 


Partnership  —  Continued: 
income  tax  on,  476. 
penalties  for  failure  to  comply  with 

income  tax  law,  503. 
personal    property    of,    taxation    of, 

248. 
procedural   provisions  as  to   income 

tax,  479. 
remedy  of,  for  excessive  tax,  404. 
return  of  bank  stock  by,  180. 
ships  and  vessels  of,  taxation  of,  248. 
with  transferable  shares,  taxation  of, 

443. 

See   also   Unincorporated   Associa- 
tion. 

4 

Passengers: 
from   foreign    countries   not   taxable 
by  state,  36. 

Patents: 
taxation  bf,  by  state,  51. 

Paupers : 

support  of,  a  public  use,  104. 

Pawnbrokers: 
taxation  of  income  of,  441. 

Payment : 
by   purchaser   at  tax   sale,   time   of, 

360. 
of  part  of  tax,  authorized,  333. 
of   taxes   by   mistake,   373. 
of  taxes  by   mortgagee,   368. 
of  taxes  by   mortgagor,   368. 
of  taxes  by  person  other  than  owner, 

370. 
of  taxes,  evidence  of,  399. 
of  taxes,   prerequisite  to  abatement 

by  court,  299. 
of  taxes  under  protest,  effect  of,  406. 
to    collector,   redemption    by,   377. 
to  purchaser  at*  tax   sale,   effect  of, 

375. 

Peddler: 
itinerant,  taxable  by  state,  35. 

Penalty : 

fifty  per  cent  for  failure  to  bring  in 
list,  287. 

for  collecting  excessive  charge  for 
redemption,  412. 

for  disclosure  of  information  by  in- 
come tax  officers,  502. 

for  evasion  of  taxation,  318. 

for  failure  by  assessor  to  keep  books, 
319. 

for  failure  by  collector  to  pay  over 
taxes,  412. 


[Citations  are  to  pages] 

Penalty  —  Continued: 
for  failure  to  file  income  tax  return, 


502. 

for  failure  to  file  return  of  bank 
stock,   180. 

for  false  entry  on  tax  list,  165. 

for  false  valuation  by  assessor,  156. 
318. 

for  false  return  by  corporation,  573. 

for  false  valuation  by  assessor,  156. 

for  fraudulent  income  tax  return, 
502. 

for  neglect  by  assessor  to  assess 
taxes,  319. 

for  non-payment  of  tax,  constitu- 
tionality of,  66. 

for  refusal  by  collector  to  exhibit 
accounts,  412. 

for  refusal  to  aid   collector,  412. 

for  refusal  to  deposit  collector's 
records,    412. 

for  refusal  to  give  information  to 
assessors,  318. 

for  refusal  to  surrender  collector's 
records,  412. 

for  unlawful  agreement  with  asses- 
sors,  318. 

on  corporation,  for  failing  to  file 
return,  571,  573,  599. 

on  insurance  company,  for  failure  to 
file  return,  527. 

on  partnership,  with  respect  to  in- 
come tax,  503. 

recovery  of,  with  respect  to  inherit- 
ance tax,  660. 

Pensions: 
constitutionality  of  grant  of,  108. 
exemption  of  certain,  from  taxation, 

142. 
taxable  as  annuities,  451. 

Personal  Property: 

intangible,  situs   of,  75. 

mortgaged   or   pledged,   taxation   of, 

250. 
of    deceased    persons,    where    taxed, 

243. 
of  joint  owners,  where  taxed,  246. 
of  partnerships,  where  taxed,  248. 
subject   to  taxation,   171. 
tangible,  situs  of,  71. 
where  and  to  whom  assessed,  237. 

Petition : 
for    abatement    of    corporation    tax, 

form  of,  773. 
for  abatement  of  income  tax,  form. 

of,  772. 


808 


Taxation  in  Massachusetts 


Petition  —  Continued: 

for  abatement  of  local  tax,  form  of, 
765. 

for  certiorari  to  quash  betterment, 
form  of,  774. 

for  repayment  of  illegal  corporation 
or  inheritance  tax,  form  of,  762. 

to  probate  court,  to  determine  in- 
heritance  tax,   form   of,   773. 

to  restrain  illegal  expenditure,  form 
of,   761. 

to  superior  court,  for  abatement  of 
betterment,  form  of,  776. 

Pilotage  Fee: 
not  duty  of  tonnage,  23. 
not  tax  on  imports,  22. 

Pipes: 
taxation  of,  246. 

value  of,  deducted  from  corporation 
tax,  539,  578. 

Place : 

meaning  of,  248,  507. 

Place  of   Business: 
meaning  of,  248. 

Plan: 

of  land  to  be  assessed  for  better- 
ment, 681. 

Pledge : 

of    personal    property,    taxation    of, 

250. 
of    securities,    effect    of,    for    income 

tax,  446. 

Poles: 

fee  for  maintenance  in  street  not  a 

tax,  5,  34. 
taxation  of,  246. 
value  of,  deducted  from  corporation 

tax,  539,  578. 

Police   Power : 

assessments  under,  120,  129. 
distinguished  from  taxation,  6. 

Poll  Tax: 

assessment  of,  186. 

collection  of,  324. 

imprisonment    for    non-payment    of 

limited,  338. 
place  of  assessment  of,  220. 
war  bonus,  187. 

Poor: 

relief  of,  a  public  use,  104. 

Poor  Debtor's  Oath: 
taking  of,  by  person  arrested,  339. 


[Citations  are  to  pages] 
Possession: 


of  real  estate,  sufficient  to  base  tax, 

229. 
under  tax  sale  limited,  358. 

Postal  Savings  Bank: 
interest  on  deposits  not  taxable,  439. 

Posting  of  Notice: 
of  sale  of  land,  352. 

Poverty : 
as  ground  for  exemption,  210. 

Power  of  Appointment: 
exercise    of,    subject    to    inheritance 
tax,  621. 

Practice : 
evidence   of,  in   construing  statutes, 

20. 
in   abatement   proceedings,   298. 
in   certiorari,   687. 

Preference: 
tax  entitled  to   in  bankruptcy,  344. 

Principal : 

distinguished    from   income,   434. 
special  assessment  to  be  paid  from, 

698. 
tax  not  to  be  paid  from,  236. 

Privacy: 

of  income  tax  returns,  488. 

of  inheritance  tax  papers,  660. 

of  returns  of  domestic  business  cor- 
porations, 553. 

of  returns  of  public  service  com- 
panies, 577. 

Private  Ways: 
assessment  of  cost  of,  120,  707. 

Probate  Court: 
jurisdiction      of,      over     inheritance 

taxes,  654. 
petition     to     determine     inheritance 

tax,  form  of,  773. 
register    of,    to    send    inventories   to 

commissioner,  750. 

Procedural  Rights: 
under  constitution,  58,  60. 

Profits: 

accumulated,  distribution  of  tax- 
able, 446. 

from  sale  of  intangibles,  how  deter- 
mined, 483. 

from  sale  of  intangibles,  taxation  of, 
455. 


Index 


809 


[Citations  are  to  pages] 


Prohibition : 
under  guise  of  taxation,  7. 

Property: 
assessment   of  average  amount,  44. 
income  from,  what  constitutes,  435. 
ownership   of   cannot   be   subject   of 

excise,  98. 
what,   may   be   subject   to   taxation, 

57,  188. 

Proportional  Taxation: 

as  affected  by  income  tax,  435. 

as  affecting  exemptions,  91. 

as  applied  to  special  assessments, 
126. 

does  not  require  uniformity  through- 
out  state,   91. 

meaning  of,  90. 

under  Massachusetts  constitution, 
89. 

under  Province  charter,  87.  . 

Protest,  Payment  under: 
not     required     as     prerequisite     to 

abatement,  300,  408. 
prerequisite  to-  action  to  reover  back 

tax,  406. 

Province  Laws: 
abatement  under,  288. 
assessment   under,   184 
assessors  under,   152. 
collector  under,  152. 
excises  under,  95. 
exemptions  under,   194. 
valuation  under,  87. 

Public    Building: 
constitutes  a  public  use,  104. 

Public  Institution: 
reimbursement  for  loss  of  taxes  on, 
171. 

Public  Records: 
requirements  as  to,  663. 

Public  Schools: 
only  schools  which  towns  may  aid, 
110. 

Public  Service  Companies: 

exemption  of  property  of,  218. 
franchise  tax  on,  574. 
may    be    assessed    cost    of    supervi- 
sion. 9. 

Public  Stocks: 
defined,  193. 

Public  Use: 
academy,  110. 


Public  Use  —  Continued: 
almshouse,  104. 
bounties,  when,   108. 
church  not,  110. 
college,  110. 
conservation    of    natural    resources, 

111. 
court  house,  103. 
defined,  103. 
electric  light  plant,  106. 
excess  takings,  111. 
extra    compensation    to    contractor, 

109. 
ferry,  105. 

fire,  rebuilding  after,  not,  104. 
G.  A.  R.  post  not,  108. 
gas  plant,  106. 
gifts  not,   107. 

hall   for  public   meetings,   104. 
highway,    104. 
historical  landmarks,   111. 
homes  for  wage  earners,  111. 
ice  plant,  106. 
joined  with  private  use,  103. 
lighting   of   street,   104. 
manufacturing    enterprise    not,    106. 
market  house,  104,  106. 
marketing  farm   products,   106. 
motive   may   be   inquired   into,   104. 
necessities  of  life,  sale  of,  106,  111. 
paupers,  relief  of,  104. 
pensions,  grant  of,  108. 
railroad,   105 
relief  of  poor,  104. 
religious  society  not,  110. 
salary    to   dependents    of    deceased 

employee,  109. 
special   assessments,  requirement  of, 

120. 
state  house,  103. 
street  railway,   105. 
subway,  105. 

taxes  can  be  levied  only  for,  101. 
town  clock,  104. 
town  hall,   103. 
war  memorial,   108. 
water  supply,   106. 
when  pretext,  tax  invalid,  103. 

Public  Utilities: 
assessment   of   expenses   of,    141. 
department   of,    141. 

Public  Ways: 

assessment  of  cost  of  laying  out,  706. 
assessment  of  cost  of  relocating,  705. 
Publication : 
defined,  320. 


810 


Taxation  in  Massachusetts 


Publication  —  Continued: 
notice    of    assessment    by,    constitu- 
tionality of,  61. 
of  notice   of  foreclosure,  380. 
of  notice  of  sale,  352. 


Purchase: 

by   city   or  town,   of   land  sold   for 

taxes,  363. 
defined,  456. 
for  full  consideration,  defined,  615. 

Purchaser : 

cannot    require    reimbursement    for 

unpaid  taxes,  371. 
concealment  by,  effect  of,  375. 
defined,  361. 
remedy  of,  in  case  of  overvaluation, 

405. 

Purpose: 

of  statute,  materiality  of,  7. 

of  tax,  may  be  inquired  into,  104. 

Quarantine  Fee: 

not  a  duty  of  tonnage,  23. 

not  a  tonnage  tax,  24. 

validity   of,  36. 
Quitclaim  Deed: 

vendor  not  bound  to  pay  tax,  744. 

Railroad  Companies: 

acceptance  of  charter  by,  a  contract, 

27. 
constitute  a  public  use,  105. 
debt  of  town  for,  to  be  met  by  tax, 

162. 
distribution  of  tax  on,   178. 
exemption  of  property  of,  218,  740. 
returns  of,  575. 

rolling    stock    of,    taxation    of,    72. 
station  of  may  be  ground  of  special 

assessment,   120. 
taxation  of,  574. 
taxation  of,  by  unit  system,  70. 
transcontinental,  taxation   of,  51. 

Rate  of  Taxation: 

determination  of,  253. 

for  use  of  sewers,  714. 

limit  of  local,  159. 

of  'bank    stock,    505. 

of  corporate  excess,  548. 

of  corporate  franchise,  582. 

of  corporate  income,  548. 

of   income   from   business,  451. 

of  income  from  dividends  and  in- 
terest, 436. 

of  income  from  sale  of  securities, 
455. 


[Citations  are  to  pages] 

Rate  of  Taxation — Continued: 
of    inheritance    tax,    608. 
of    insurance    companies,   521,    523, 

524. 
of   public   service   companies,  582. 
of   savings    banks,   515. 
of  trust   companies,  582. 


Real  Estate: 
apportionment  of  taxes  on,  309. 
collection  of  tax  on  by  action  at  law, 

343. 
collection  of  tax  on  by  sale,  346. 
description  of  in  valuation  list,  275. 
of    deceased    person,    assessment    of, 

236. 
separate  lots  separately  assessed,  229. 
separate  valuation  of,  275. 
situs  of,  for  inheritance  tax,  80. 
situs  of,  for  property  tax,  70. 
valuation  of,  268. 
value    of,   deducted   from    corporate 

franchise,  539,  578. 
what  constitutes,    190. 
where  and  to  whom  assessed,  226. 

Real  Estate  Trust: 

liability  of  to  income  tax,  444. 
shares  in,  situs  of,  80. 

Reasonableness : 
of  excise,  99. 
of  tax,  required  when,  8. 

Reasonable  Excuse: 
for  dela3%  what   constitutes,  290. 

Re-Assessment : 

of  special  assessment,  124,  703. 

of  taxes,  306. 

of  taxes,  as  affecting  covenant 
against  incumbrances,  744,  747. 

of  taxes,  as  affecting  lien,  350. 

of  taxes,  constitutionality  of,  65. 

upon  notice  from  collector  as  to  in- 
validity,  391. 

Receipt: 
by  collector  to  mortgagee,  form  of, 
424. 

Receipts : 
derived    from    interstate    commerce. 

how  taxable,  45. 
gross,  tax  on  not  direct,  14. 
of  boxing  matches,  tax  on,  737. 

Receiver: 
tax  preferred  claim  against,  345,  749. 
taxable   on  income,  when,  476. 
taxation  of,  239. 


Index 


811 


[Citations  are  to  pages] 


Recitals: 
in  deed  to  town,  364. 
in   tax   deed,   prima   facie   evidence, 
358. 

Record   Owner: 

taxable  for  land,  228. 

Redemption : 

barring  of,  by  decree  of  court,  381. 

by  leave  of  court,  381. 

by  payment  to  collector,  377. 

by  person  having  partial  interest, 
372. 

cannot  be  treated  as  purchase,  376. 

certificate  of,  by  payment  to  collec- 
tor, form  of,  768. 

effect  of  change  of  law  concerning, 
68. 

from  tax  sale,  374. 

in  case  of  non-resident  purchaser, 
363. 

in  case  of  sale  of  land,  376. 

in  equity,  383. 

penalty  for  charging  excessive  fees, 
412. 

Refund : 
of  inheritance  tax,  on  property  re- 
turned, 646. 
of  stock  transfer  tax,  604. 

Register  of  Deeds: 

noting  of  instruments  affecting  tax 
deeds,  144. 

to  notify  commissioner  of  declara- 
tion of  trust,  144. 

Registration  Tax: 
on   bonds   unconstitutional,   97,   431. 

Registry  of  Deeds: 
betterment  estimate  to  be  recorded 

in,  681. 
defined,    320. 

Regular    Employees: 
defined,  490. 

Regulation : 
distinguished    from    taxation,   6. 

Reimbursement : 

of  purchaser  at  invalid  sale,  360. 

Religious    Institutions: 
exemption  of,  93,  204. 
taxable    for    ministerial    funds,    226, 
230. 

Remainderman : 
payment  of  taxes  by,  372. 


Remedies : 
for  taxes  illegally  assessed,  400. 

Rent: 

for  maintaining  structures  in  street 
not  a  tax,  5. 

not  taxable  as  business  income,  453. 

owner  may  add  portions  of  better- 
ment to,  697. 

tenant  may  deduct  taxes  from,  233. 

Repeal : 

of    exemption    in    general    laws   not 

breach   of  contract,  27. 
of    special    assessment    violates    no 

right  of  town,  124. 

Replevin : 
of  goods   illegally   distrained,   337. 

Reports: 
annual,    of    commissioner,    182. 

Reserve  Fund: 

disposition  of,  255. 

Reservoir: 
compensating,   taxation   of,  220. 

Residence: 
defined,  222. 

See  also  Domicile 

Retaliatory  Provisions : 
in  inheritance  tax,  626. 
in  tax  on  foreign  life  insurance  com- 
panies,  523. 

Retirement  System: 
exemption  of,  142,  204. 

Retroactive  Statute: 
inheritance  tax  not,  660. 
may    authorize    special    assessment, 

124. 
may  provide  for  collection  of  taxes, 

68. 
validity  of,  64. 

Retroactive  Tax: 
validity  of,  64. 

Return  Day: 
on    petition    for    foreclosure    of    tax 
title,  380. 

Returns: 
destruction  of,  authorized,  182. 
of  bank  stock  by  fiduciaries,  180. 
of   corporations,  effect   of  failure  to 

file,  571. 
of    domestic    business    corporations, 

551. 
of  employees'  salaries,  489. 


812 


Taxation  in  Massachusetts 


[Citations  are  to  pages] 


Returns  —  Continued: 

of  foreign  corporations,  565. 

of  income,  by  individual,  480. 
extension  of  time  for  filing,  486. 
mandamus    to     compel    filing    of, 

488. 
omitted    and    supplementary,    485 
penalty  for  failure  to  file,  502. 
prepared   by   commissioner,   484. 

of  insurance  companies,  527. 

of  public  service  companies,  574. 

of  savings  banks,  of  amount  of  de- 
posits, 517. 

of  taxable  property,  see  Lists 

of  trust  companies,  574. 

privacy  of,  488. 

taxpayer  may  be  compelled  to  file, 
63. 

verification  of,  486. 

Revenue  in  the  Nature  of  Rent: 
defined,  220. 

Revenue    Stamps : 
taxation  of,  48. 

Revision  of  Valuation: 
of  taxable  property,  306. 

Reward,  Unstipulated: 

may  be  paid  with  public  funds, 
when,  107. 

Rights: 

income    from    sale    of,    taxable,    456. 

Road  Tax: 

constitutionality    of,    10. 

Rules   and   Regulations : 
for  corporation  tax,  572. 
for  income   tax,  493. 

Salary: 

of  assessors,  317. 

of  assessors  subject  to  trustee  proc- 
ess when,  317. 

of    collector,   329. 

of  deceased  employee,  payment  of, 
109. 

of  United  States  officer  cannot  be 
taxed  by  state,  49. 


Sale 


of  assets   of  corporation  fraudulent, 

when,  595. 
of  commodity  by  town  not  a  tax,  4. 
of  goods  distrained,  337. 
of   intangible   property,   profit   from, 

taxation  of,  455. 


Sale    of    Land    for   Non-payment    of 
Taxes: 

adjournment  of,  355. 

cannot  be  based  on  invalid  tax,  349. 

cannot  be  made  for  more  than  due, 
356. 

cannot  include  taxes  on  other  par- 
cels, 350. 

conduct  of,  354. 

conveys  a  paramount  title,  67,  350, 
355. 

estoppel  to  contest  validity  of,  357. 

exessiveness  of  tax  does  not  invali 
date,  349. 

invalid,  bill  to  set  aside,  385. 

invalid,  reimbursement  of  purchaser 
at,  360. 

of   parcels   of   small   value,  365. 

origin  and  history  of,  321,  346. 

publication  and  posting  of  notice  of, 
352. 

right  of  possession  under,  356. 

title  conveyed  by,  358. 

to  city  or  town  when  no  one  bids, 
363. 

to  city  or  town  when  purchaser  fails 
to  pay,  363. 

to  non-resident,  362. 

to  person  assessed  operates  as  pay- 
ment, 357. 

void,  if  excessive  fees  charged,  329. 

Sales  Tax: 
not  a  direct  tax,  13. 

Sanitarium : 
exemption  of,  from  taxation,  202. 

Savings  Bank  Insurance: 
taxation  of,  520. 

Savings  Banks: 

deposits  in,  exempt  from  income  tax, 
438,  439. 

deposits  in,  exempt  from  local  tax, 
214,  518. 

effect  of  incapacity  to  do  business, 
519. 

franchise  tax,  portions  of  deposits 
exempt  from,  516. 

national  bank  stock  held  by,  ex- 
emption of,  514. 

returns  of  amount  of  deposits,  517. 

taxation  of,  515. 

Savings   Departments: 

see  Trust  Companies 

School  Fund: 
establishment  of,  664. 


Index 


813 


[Citations  are  to  pages] 


Schools: 
aid  of  with  public  funds,   110. 
exemption  of,  197. 

Seal: 

not  required  on  collector's  warrant, 

281. 

Secondary   Allocation : 
of  bank  stock  tax,  181. 

Securities : 
defined,  541. 

non-taxable,    deducted    from    corpo- 
rate excess,  541. 
United  States,  not  taxable  by  state, 
48.     • 

Selectmen: 
act  as  assessors,  when,  151. 
may  be   chosen   collector,   151. 
notify  assessors  of  approval  of  col- 
lector's bond,  151. 

Separate  Parcel: 
valuation  of,  276. 
what  constitutes,  350. 

Service : 

defined,  320. 

of  demand  and  notice,  fee  for,  328. 

of  process  against  foreign  corpora- 
tions, 395. 

of  process  not  required  in  abatement 
appeal,  298. 

Set-off : 

of  benefits  compared  with  special 
assessment,  673. 

of  money  due  person  owing  tax,  395. 

of  taxes  against  claim  for  reimburse- 
ment, 362. 

Settlement: 
of  betterment  assessments,  667. 
of  inheritance  tax,  640. 

Sewage  Disposal  Plant: 

payment  in  lieu  of  taxes  on,  218. 

Sewer   Assessment : 
annual  charge  for  use  of  sewer,  716. 
annual  charge  for  use  of  sewer  not 

cl     l>cLX.    O. 

constitutionality   of,    122. 
determination  of  method,  717. 
extension  of  time  for  paying,  718. 
fee   for  use   of  sewers,   718. 
for  maintenance  of  sewers,  122. 
for  particular  sewers,  719. 
for  sewerage  system,  714. 
in  city  of  Boston,  711. 


Sewer  Assessment  —  Continued: 
levy  of,  709. 
lien  for,  724. 
notice  of,  710. 
on  land  abutting  on  more  than  one 

way,  718. 
payment  for, privilege  of  sewer,  717. 
payment  of  part   of   cost  by   town, 

719. 
time   of  levy,   710. 
under    administrative    provisions    of 

betterment  laws,  726. 
when  sewer  built  by  landowner,  719. 

Sheriff: 
collector  may  issue  warrant  to,  340. 
fees   of,   for   collecting   taxes,   393. 
to  post  list  and  warrant,  393. 

Ships : 

see  Vessels 

Shortage : 
of  collector,  liability  for,  326. 

Sidewalk  Assessments: 
constitutionality  of,  122,  130. 
for  cost  of  removing  snow,  727. 
in  city  of  Boston,  722. 
levy  of,  720. 
lien  for,  724. 

under    administrative    provisions    of 
betterment  law,  726. 

Since  Deceased: 
defined,  469. 

Situs : 
business,  defined,  76. 
for  excises,  84. 
for  income  taxes,  84. 
for  inheritance  taxes,  80. 
of  capital  employed  in  business,  74. 
of  debt,  75,  82. 
of  easement,  70. 
of  franchise,  77. 

of  intangible   personal   property,  73. 
of  interstate  line,  70. 
of  loans  on  insurance  policies,  76. 
of  mill  site,  70. 
of  mortgage,  76,  81. 
of  property  generally,  69. 
of  property  of  deceased  person,  78, 

81. 
of    property    subject    to    power    of 

appointment.    83. 
of   property   used   in   several   states, 

72. 
of  railroad  rolling  stock,  72. 
of  real  estate,  70,  80. 


814 


Taxation  in  Massachusetts 


[Citations 

Situs  —  Continued: 
of  securities,  74,  81. 
of  stock  in  corporations,  76,  81,  82. 
of  stock   in  real  estate   trusts,  80. 
of  tangible  personal   property,  71. 
of  trust  property,  78. 
of  vessels,  72. 
property  having,  in  other  state  not 

taxable,  41. 
state  cannot  establish,  so  as  to  affect 

other  states,  31. 

Sixteenth    Amendment : 
effect  of,  14. 

Snow: 

assessment  of  cost  of  removal,  727. 

requiring  abutters  to  remove,  129. 
Soldiers    and    Sailors: 

exemptions  of,  212. 

Sources  of  Taxable  Income: 
return  of,  485. 

Special  Assessments  and  Betterments: 
abatement   of,   petition   for,   692. 
abatement  of,  petition  for,  by  estate 

of   deceased   person,   695. 
abatement  of,  right  of,  as  affecting 

constitutionality,  127. 
action  to  recover  back,  689. 
action    to    recover    back,    form    of 

declaration,  775. 
appeal  to  county  commissioners;  697. 
appeal  to  superior  court,  693. 
appeal    to    superior    court,    form    of, 

776. 
apportionment   of,  700. 
apportionment     of     public     burdens 

not,   114. 
assessment  of,  669. 
assessment  of,  by  appointive  officers 

valid,  17. 
benefit   assessable,   672. 
benefit  must  not  be   exceeded,   124, 

679. 
by  area  or  frontage,  constitutionality 

of,  125. 
certiorari  to  quash,  687. 
certiorari  to  quash,  form  of  petition. 

774. 
collection  of,  684. 
completed  work,  mav  be  authorized 

for,   124. 
constitutionality  of,  119. 
cost    of    improvement    limits,    123. 
covenants   as   to   "taxes"   applicable, 

when,   119. 
defined,  11. 
delegation  of  power  to  levy,  691. 


are  to  pages] 

Special    Assessments    and    Betterments 

—  Continued: 

determination  of  district  by  legis- 
lature, 127. 

disproportionate,  invalid,  127. 

distinguished  from  set-off  of  bene- 
fits, 673. 

encumbrance  from,  745. 
exemption  from,  675. 
exemption  from  in  charter,  217. 
exemption  from,  of  cemeteries,  207. 
extension  of  time  for  filing  petition 

for  abatement,  693. 
for  abatement  of  nuisances,  129. 
for  drainage  of  wet  lands,-  122,  727, 

751. 

for  exterminating  insect  pests,  732. 

for  gas  pipes  and  electric  wires,  741. 

for  laying  out,  altering  or  discon- 
tinuing public  ways,  706. 

for  private  ways,  120,  707. 

for  relocating  public  ways,  705. 

for  reconstructing  public  works,  123. 

for  removal  of  snow  from  sidewalks, 
129,  727. 

for  roads  to  swamps  and  quarries, 
753. 

for   sewer   construction,    122,   709. 

for  sewer  maintenance,  122. 

for  sidewalks,  122,  130,  720. 

for  stations  for  railroads,  120,  122. 

for   street   watering,    122. 

general  benefit  cannot  be  basis  of, 
122,   123. 

hearing,  right  to,  128. 

improvement  must  be  local,  121. 

in  city  of  Boston,  680. 

interest  upon  unpaid,  700. 

irregularity  invalidating,  690. 

jury  trial,  no  right  to,  128. 

lessee  to  contribute  to,  697. 

lien  for,  duration  of,  699. 

limited  to  actual  cost,  678. 

may  be  levied  years  after  comple- 
tion, 124. 

necessity  of  improvement  not  open, 
129. 

on  street  railway  for  widening  street, 
740. 

order  assessing,  form  of,  774. 

origin  and  development  of,  116. 

part  of  cost  may  be  subject  of,  123. 

payment  gives  no  right  to  have  im- 
provement  maintained,    122,    130. 

plan  and  estimate,  681. 

procedure  in  superior  court,  696. 


Index 


815 


Special    Assessments    and    Betterments 

—  Continued: 

proportional  to  benefit  valid  when, 
125. 

provisions  of  General  Laws  exclu- 
sive, 704. 

rate  of,  no  right  to  hearing  on,  129. 

reassessment  of,  124,  703. 

remedies  for  'excessive  or  illegal,  686. 

repeal  of,  violates  no  rights  of  town, 
124. 

requirements  for  valid,  120. 

rights  of  owner  of  land  assessed,  130. 

separate  elements  of  improvement, 
679. 

settlement   and   assumption   of,   667. 

subsequent  division  of  land  assessed, 
702. 

surrender  of  estate  assessed,  682. 

though  main  object  public  benefit, 
123. 

time  of  levy,  676. 

under  police  power,   120,   129. 

use  must  be  public,  120. 

Special  Benefits: 
defined,  672. 

Special  Collector: 
appointment  of,  328. 

Special    Taxes: 

for  temporary  purposes,  enumerated, 
756. 

Spirit  of  Law: 
tax  cannot  be  based  on,  18. 

Stamp  Tax: 

on  bank  notes,  48. 

on  bills  of  exchange,  22. 

on  bills  of  lading,  22. 

on  sale  by  non-resident,  84. 

on  sale  of  stock  not  a  direct  tax,  14. 

on  stock  transfers,  600. 

State  Aid: 
for  public  schools,  664. 

State  Tax: 

amount  of,  135. 

apportionment  of,  167. 

assessed  with  county  and  town  taxes, 
256. 

collection  of,  from  towns,  257. 

Senate  may  institute  inquiry  con- 
cerning,  101. 

warrant  for  assessment  of,  251. 

State  Treasurer: 

assessment  of  deposits  with,  181. 
formerly   tax   commissioner,    140. 


[Citations  are  to  pages] 

State  Treasurer  —  Continued: 
to  adjust  national  bank  stock  credits, 


513. 

to  issue  warrant  for  assessment  of 
state  tax,  251. 

Statement : 
of  amount  secured  by  mortgage,  263. 
of  purchaser's  residence,  362. 

Statute: 

construction  of  certain  words  in,  139. 

construed  as  exercise  of  valid  power, 
if  possible,  7. 

construed  to  require  notice,  60. 

practical  construction  of,  importance 
of,  20. 

tax,  construction  of,  19. 

tax,  to  be  construed  as  part  of  sys- 
tem, 320. 

Stock: 
exemption    of,    from    local    taxation, 

215. 
liability  to  seizure  on  distress,  336. 
of  national  banks,  taxation   of,  505. 
situs  of,  76. 
valuation  of,  536. 

Stock  Dividends: 
taxation  of,  442. 

Stock  Exchange: 
membership  in,  taxation  of,  57. 

Stock  Transfer  Tax: 
application   to   foreign    corporations. 

33. 
assessment  of,  600. 
collection  of,  603. 
refund  of,  604. 

Storage   Warehouse: 
list   of   property   in,   263. 

Street  Railway  Companies: 
assessment    of    for    widening    public 

way,  740. 
commutation  tax  on,  584. 
distribution  of  tax  on,  177. 
public  use,  105. 
returns  of,  575. 
taxation  of,  587. 
taxation  of  wires  and  poles  of,  246. 

Street  Sprinkling: 
assessment  for,  122,  144. 

Subrogation : 
to  rights  of  collector,  371. 

Subway : 
a  public  use,  105. 


816 


Taxation  in  Massachusetts 


Succession  Tax: 
denned,  606. 

Summons : 

collector  may  serve,  332. 
form  of,  413. 


[Citations  are  to  pages] 

Tariff  on  Imports  —  Continued: 
state  cannot  levy,  21. 
state  levied  under  confederation,  95. 


Superior  Court: 
appeal  to,  on  betterment  assessment, 

693. 
appeal  to  on  income  tax,  498. 
appeal  to  on  local  tax,  297. 
appeal  to  on  wet  lands  assessment. 

730. 
procedure   in,  on   abatement   appeal, 

298. 
procedure  in,  on  betterment  appeal. 

696. 

Supervisors  of   Local  Taxation: 
appointment  of,  165. 

Supreme  Judicial  Court: 
certiorari  to,  296. 

jurisdiction    of    ten    taxpayers'    peti- 
tion, 147. 
report  to,  on  foreclosure  of  tax  title, 
382. 

Sureties : 
on  collector's  bond,  liability  of,  326. 

Surface  Water: 

special    assessment    for    drainage    of, 
122. 

Surplus: 

disposition  of,  on  distress,  338. 
disposition  of,  on  tax  sale,  355. 

Surrender: 
by  purchaser  at  invalid  sale,  360. 
of    estate    assessed    for    betterment. 

682. 
offer  to,  upon  illegal  sale,  form   of, 
767. 

Suspension : 
of  tax  law,  power  to  order,  16. 

Taking  of  Land   for  Non-Payment  of 
Taxes : 
authorized,  365. 
form  of,  420. 
instrument  of.  366. 

Tangible  Personal  Property: 
in  other  states,  taxation  of,  189. 
in  what  town  taxed,  237,  239. 
situs  of,   71. 

Tariff  on  Imports: 
both  regulation  and  taxation,  6. 


Tax: 

cannot  be  collected  in  another  state, 
31. 

defined,  3. 

direct,  defined,  13. 

distinguished  from  excise,   11. 

distinguished  from  inspection  fee,  8 

distinguished  from  sale  of  commod- 
ity, 4. 

excessive,  as  indirect  prohibition,  8. 

in  specific  sense  defined,   11. 

includes    special    assessment    when 
119. 

must  be  for  public  use,  101. 

must   be    for   use    of    district   taxed, 
113. 

must  be  paid  in  money,  323. . 

name  of,  not  controlling,  14. 

not  a  contractual   obligation,  24. 

not  a  debt,  11. 

partially  invalid,  311. 

payment  of  in  coupons,  24. 

preferred  claim,  66,  345. 

real    purpose    of,    may    be    inquired 
into,  104. 

recovery  of,  in  common  law  action, 
11,  342. 

toll  not  a,  5. 

upon  one  class  of  property  for  a  par- 
ticular purpose,  116. 

water  rates  not,  5. 

Tax  Bill: 

for  corporation  tax,  583. 
for  income  tax,  493. 
for  local  tax,  323. 

Tax  Commissioner: 
establishment  of  office  of,  140. 
See  also  Commissioner  of  Corpora- 
tions and  Taxation. 

Tax  Law: 

construction  of,  19. 

not   construed  technically,   19. 

strictly  construed,  18. 

Tax  Limit: 
establishment   of,    159. 

Tax  Rate: 

determination  of,  253. 
distinguished   from   tax   limit,   161. 
fixed     without      non-resident     bank 
stock,  252. 


Index 


817 


[Citations 

Tax  Title: 

absolute  only  after  foreclosure,  379. 

extinction  of,  by  payment  to  col- 
lector, 377. 

holder  of,  taxable   as   owner,  228. 

form    of   notice,    when    deemed    in- 
valid, 425. 
.  not  affected  by  unimportant  errors, 
350. 

not  merged  with  any  other  interest 
in  the  land,  376. 

paramount   title,   358. 

precariousness  of,  under  former  law, 
348. 

procedure  for  testing  validity  of,  381. 

procedure  if  deemed  invalid,  390. 

Taxable  Year: 
defined,  547. 

Taxation,  Increase  of: 
table  showing,  138. 

Taxation,  Power  of: 

defined,  3. 

delegation  of,  16. 

distinguished   from   regulation,   6. 

distinguished  from  sale  of  commod- 
ity, 4. 

inherent  in  sovereignty,  15. 

legislative,  15. 

limitations  of,  in  United  States  con- 
stitution, 20. 

use  of,  to  enforce  criminal  law,  10. 

Taxpayer : 
remedy  for  excessive  burden  on  his 

town,   115. 
remedy  for  tax  for  illegal  purpose, 

147. 
remedy  for  tax  for  illegal   purpose, 

form  of  petition,  761. 

Telegraph  Companies: 
abatement  of  taxes  on,  302. 
distribution  of  taxes  on,  178.    • 
returns  of,  271,  575. 
taxation  of,  51,  70. 
valuation  of  structures  of,  270. 

Telegraph  Pole: 
fee  for  maintenance  not  a  tax,  5. 
See  also  Poles. 

Telephone  Companies: 
abatement  of  taxes  on,  302. 
distribution  of  taxes  on,  178. 
returns  of,  271,  576. 
valuation  of  structures  of,  270. 

Temporary  Taxes: 
statement  of,  756. 


are  to  pages] 

Tenant : 

application    for   abatement    by,   285. 
may  be  compelled  to  pay  tax,  64. 
obligation  to  pay  tax  on  buildings, 

235. 
paying  taxes  on  real  estate,  rights  of. 

233. 

Tenants  in  Common: 
assessment   of  taxes   on,  229,  366. 
collection  of  taxes  on,  366. 
lien  of,  for  taxes  paid,  391. 
personal   property    of,   where    taxed, 
246. 

Tender: 

to  purchaser  at   tax  sale,   effect  of, 

375. 
when  tax  title  has  been  transferred, 

376. 

Territorial  Jurisdiction: 

see  Situs. 

Territories : 
bonds  of,  not  taxable,  49. 

Three  Mill  Tax: 
constitutionality  of,  90,  431. 

Tobacco: 
tax  on  not  a  direct  tax,  14. 

Toll: 

not  a  duty  of  tonnage,  24. 
not  a  tax,  5. 

Tonnage,  Duty  of: 
defined,  23. 
toll  not,  5. 

Tort,  Action  of: 
against  assessors,  314. 
against  city  or  town,  408. 
against  collector,  396. 
for  illegal  distress,  337. 

Town  Government: 
recognized    by    Massachusetts    con- 
stitution, 18. 

Towns  and  Cities: 
see  Municipal  Corporations. 

Trading  Stamps: 
excise  on  unconstitutional,  97. 

Transfer  of   Stock: 
taxation  of,  see  Stock  Transfer  Tax 

Travelling  Salesmen: 
taxation  of,  35. 

Treasurer,  State: 
see  State  Treasurer. 


S18 


Taxation  in  Massachusetts 


[Citations  are  to  pages] 


Treasurer,  Town  or  City: 
acting     as     collector     may     appoint 

deputies,  157. 
collection  of  taxes  by,  157. 
list  of  employees  by,  490. 
may    authorize    suit    on    collector's 

bond,  328. 
may    issue    warrants    to    sheriffs    or 

constables,  393. 
may    withhold    money    due    persons 

owing  taxes,  395. 

Treaties : 
limitation  of  taxing  power  by,  32. 

Trees : 
taxation  of,  426. 
See  also  Forest  Lands 

True  List: 
what  constitutes,  290. 

Trust: 

declaration    of,    notice    to    be    sent 

commissioner,  144. 
distinguished   from   partnership,  249. 
with  transferable  shares,  taxation  of, 
443. 

Trust  Companies: 
application  for  correction  of  tax  by, 

583. 
deduction  of  mortgages  held  by,  579. 
distribution  of  tax  on,  177. 
income  tax  on  trust  property,  475. 
not    entitled    to    double    deduction, 

518. 
notice  of  tax  on,  583. 
rate  of  tax  on,  582. 
returns  of,  574. 
returns   of   stock   held   by   fiduciary 

or  partnership,    180. 
savings     departments,     deposits     in 

exempt    from    income    tax,    when, 

439. 

deposits  in  exempt  from  local  tax, 
214. 

taxation  of,  515. 
taxation   of,   574,  580. 

Trust  Property: 
exemption  of,  201. 
payment  of  taxes  on,  236. 
taxation    of    income    from,    84,    470, 

473. 
where  taxed,  238. 

Trustee : 
carrying    on    business,    taxation    of, 

454. 
corporate,  liable  to  income  tax,  475. 


Trustee  —  Continued: 
deduction  of  expenses,  471. 
exemption     of     intangible     property 

held  by,  215. 
in  bankruptcy,  liable  for  tax,  346. 
filing  of  list  by,  260. 
income  tax  upon,  470. 
inventory  to  be  filed  by,  647. 
liable   for  inheritance  tax,  627,  644. 
may  claim  exemption  for  beneficiary. 

474. 
non-resident,   taxation   of,  473. 
return  of  bank  stock  by,  180. 
situs  of   property   of,   78. 
taxable  as  owner  of  real  estate,  227. 
wrongful  payment  of  taxes  by,  373. 

Trustee  Process: 

attachment  of  salary  of  assessor  by, 
317. 

Unincorporated    Associations: 

franchise  tax  on  unconstitutional,  97. 
interest  deduction,  448. 
list   of   shareholders,  489. 
.    not   taxed   as   ordinary   partnership, 
479. 
shares  in,  exemption  of,  214. 
situs  of,  80. 
situs    of,   for   inheritance   tax,   99, 

616. 
transfer  tax  on,  600. 
taxable  on  business  income,  457. 
taxable  under  income  tax,  443. 
when  a  partnership,  249. 

Unit  System: 
taxation  by,  70. 

United  States: 

bonds,  interest  not  taxable,  438. 

bonds  not  taxable  by  state,  48. 

bonds,  subject  to  franchise  tax,  532. 

bonds,  subject  to  seizure  on  distress. 
49. 

charter  granted  by,  taxation   of,  50. 

contract  with,  taxation   of,  50. 

federal  land  bank  bonds,  taxation 
of,  49. 

franchise  granted  by,  taxation  of,  50. 

lands,  taxation  of  property  on,  47. 

not  affected  by  state  law  as  to  re- 
cording liens,  52. 

officer  of,  not  taxable,  49,  454. 

property  of,  not  taxable,  46,   196. 

revenue  stamps,  not  taxable,  48. 

takes   precedence   over  state,  52. 

tax  receipts,  state  cannot  require 
publication,  52. 


Index 


819 


United   States  —  Continued: 

taxes,  amount  collected  in  Massa- 
chusetts, 138. 

territories,  bonds  of,  taxation  of,  49. 

trustee  in  bankruptcy,  taxation  of, 
50. 

warehouse,  taxation  of  property  in, 
47. 

Use: 
change   of,  after  assessment  collect- 
ed, 130. 

Vacancy: 
in  board  of  assessors,  how  filled,  257. 
in  office  of  collector,  how  filled,  158, 
159. 

Valuation: 

by  formula,  constitutionality  of,  60. 

defined,  139,  264. 

determination  of,  267. 

diminution  of,  statement  of  caus^ 
of,  313. 

false,  penalty  for,  156. 

for   inheritance   tax,   649. 

necessity  of,  for  property  tax,  59. 

of  buildings,  268. 

of  household  furniture,  269. 

of  property  of  public  service  com- 
panies, 71. 

of  property  of  telephone  and  tele- 
graph companies,  270. 

of  real  estate,  268. 

of  stock  in  business  corporations, 
536. 

of  stock  in  public  service  companies, 
578. 

of  taxable  property,  267. 

revision  of,  306. 

Valuation   List: 
constitutes  a  public  record,  663. 
contents  of,  273. 
deposit  of,  in  office,  272. 
deposit  of,  with  commissioner,  279 
verification  of,  by  oath,  279. 

Verification: 
of  income  tax  returns,  486. 
of  returns  of  corporations,  570. 

Vessels : 
excise  on  corporations  owning,  589. 
of  joint  owners,  taxation  of,  248,  250. 
owned  by  corporations,  taxation   of, 

589. 
owned   bv   individuals,   taxation   of, 

220. 
situs  of,  72. 


[Citations  are  to  pages] 

Vessels  —  Continued: 
tax  on  not  duty  of  tonnage,  23. 
tonnage  tax  on,  prohibited,  23. 
used  in  interstate  commerce  taxable, 
43. 


Vested  Rights: 
impairment  of,  68. 

Veterans : 
assessors  to  make  return  of  exempt 

property  of,  313. 
associations   of,   exemptions   of,   203. 
exemptions   of,  212. 
exemptions  of,  adjustment  of,  171. 
have  no  preference  in  appointment 
as  assessors,  154. 

Voluntary   Associations: 
see  Unincorporated  Associations. 

Voters : 
listing  of,  by  assessors,  164. 

Voting : 
deprivation    of    right,    for    non-pay- 
ment of  tax,  66. 
not  prerequisite  to  taxation,  91,  190. 

War  Bonus  Tax: 
assessment  of,  187,  759. 

War  Finance  Corporation: 
bonds  of,  not  taxable,  440. 

Warehouse : 
government,  taxation  of  property  in, 

47. 
list  of  property  in,  263. 
receipts  not  taxable  property,  73. 

Warrant: 

by  assessors,  as  protecting  collector, 
397. 

by  assessors,  form  of,  762,  764. 

by  assessors,  to  accompany  tax  list, 
280. 

by  collector,  to  distrain  or  commit, 
form   of,  414. 

by  collector,  to  sheriff  or  constable, 
340. 

by  treasurer,  157. 

defective,  effect  of,  282. 

destruction  of,  effect  of,  280. 

for  assessment  of  state  tax,  251. 

for  collection  of  drainage  assess- 
ments, 753. 

treasury,  taxation   of,  48. 

Water  Companies: 
assessment  of  cost  of  regulating,  141. 
distribution  of  tax  on,  178. 
exemption  of,  from  taxation,  207. 


820 


Taxation  in  Massachusetts 


[Citations  are  to  pages] 


Water  Districts: 
taxation  by,  164.     . 

Water  Pipes: 
taxation  of,  247. 
See  also  Pipes. 

Water  Power: 
taxation  of,  70,  191,  277. 

Water  Rates: 
not  taxes,  5. 

Water  Supply: 
payment  in  lieu  of  taxes  on,  218. 
public  use,  106. 

Wharfage  Fee: 
not  a  duty  of  tonnage,  23. 
not  a  tax,  5,  34. 

Wires : 
taxation  of,  246. 

Women : 
domicile  of,  223. 
exemption  of,  209. 
liable  to  income  tax,  437. 

Woodland : 
taxation  of,  426. 
See  also  Forest  Lands. 

Words  and  Phrases  Defined: 
action,   343. 
adjournment,  364. 
aggrieved  person,  293. 
alienation,  351. 
annuity,  450. 
assessors,  139. 
benefits,  672. 
business,  453,  550. 
business  situs,  76. 
charges   of   imprisonment,   340. 
charitable   institutions,    197. 
collector,  320. 
commodity,   97. 
contemplation  of  death,  624. 
corporate  excess,  536. 
debt,  11. 
deposit,  516. 

different  arrangement,  233. 
direct  tax,  13. 
discovery,  305. 
distress,  335. 
doing  business,  490. 
doing  business   for  profit,  550. 
domestic   business    corporation,    534. 
domicile,  221. 
double  taxation,  55. 
due  process  of  law,  52. 
duty,  103. 


Words     and     Phrases     Defined  —  Con- 
tinued: 

duty  of  tonnage,  23. 
employee,  490. 
engaged  in  business,  550. 
equitable,  717. 

error,   omission   or   informality,   391. 
estate  tax,  606. 
evidence    of   indebtedness,   491. 
excess  and  deficiency  account,  255 
excise,  12. 

expenses  and  costs,  300. 
export,  21. 
fair  cash  value,  267. 
foreign  corporation.  535. 
front  foot  rule,  125. 
general  benefit,  672. 
general  property  tax,   11. 
gross  income,  458. 
hearing,  62,  128. 
import,  21. 
income,  434. 
inhabitant,  221,  436. 
inspection  fee,  8. 
insurance,  525. 
interstate   commerce,   33. 
legacy  tax,  606. 
life  insurance  company,  522. 
like  exemption,  627. 
list,  260. 

literary  institution,  199. 
local  benefit,  672. 
local  business,  39. 
market  value,  267. 
money  bill,  100. 
moneyed  capital,  508. 
money's  worth,  615. 
net  income,  545. 
notice,  60. 
owner,  227,  356. 
place,  248,  507. 
place  of  business,  248. 
police  power,  6. 
proportional    taxation,    90. 
public  schools,  110. 
public  stocks,  193. 
public  use,   103. 
publication,  320. 
real  estate,  190. 
reasonable  excuse,  290. 
registry  of  deeds,  320. 
regular  employee,  490. 
residence,  222. 

revenue  in  the  nature  of  rent,  220. 
sale,  456. 
securities,  541. 
separate  parcel,  350. 


Index 


821 


Words       and       Phrases 

Continued: 
service,  320. 
since  deceased,  469. 
situs,  69. 

special  assessment,  11. 
special  benefit,  672. 
succession  tax,  606. 
tax,  3. 

tax  limit,  159. 
tax  rate,  161,  253. 
tax  title,  358. 
taxable  year,  547. 


[Citations  are  to  pages] 
Defined  —     Words       and 


Phrases       Defined  — 

Continued: 
taxation,  3. 
three  mill  tax,  90. 
tonnage  duty,  23. 
true  list,  290. 
unit  system,  70. 
valuation,  139,  264. 

Working  Out: 
of  taxes,  10,  323. 

Young  Men's  Christian  Association: 
exemption  of,  199. 


"T'nP     95     CENTS 
AN    INITIAL    FINE     OF        TO  bETUrn 

A  ^    ASSESSED   FOR   ^"V  £  pENAUTY 

WlU-  BE  AS^S^H£  DATE  DUE.      THE/foURTH 
THIS  BOOK  ON  THt.  w     _CNTS  ON  THE  FOU" 
TH1=>   D        „_.cp  TO  50  CEN'=        ^evfnTH     DAY 
wlU-  INCREASE  T O         ^    ^    sEVENTH 

DAY     AND    TO     $1.0  __==£== 

OVERDUE. 


OCT   17   193! 


FEB   10  1933 

JAN  I5  1934 


rsi 


\$m 


i&\ 


lYln  i 


3? 


APR  15  W69  1 


t-OAN  Oei"T. 


LD  2l-50m-8,32 


'^ 


481740 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 


If 

if  *i 

1 


ill 


